United States District Court, D. Maine
ORDER ON PLAINTIFF'S MOTION FOR CONDITIONAL
Torresen, United States Chief District Judge
Giguere, a former employee of Defendant Port Resources, Inc.,
has brought this lawsuit, alleging that Port Resources
violated the Fair Labor Standards Act (“FLSA”) by
failing to pay overtime for all hours worked in excess of
forty hours a week. At issue is whether Port Resources can
deduct “sleep time” from the hours of its
round-the-clock staff. On June 14, 2016, Giguere moved to
certify this action conditionally as a collective action
under the FLSA and to provide notice to potential opt-in
members as authorized by 29 U.S.C. § 216(b). (ECF No.
7). For the following reasons, the motion is GRANTED.
Resources is a non-profit organization that owns and runs
residential facilities for adults with disabilities.
MacDonald Aff. ¶ 2 (ECF No. 12-1). This program has
twenty-four group homes across southern Maine, each with one
to four clients. MacDonald Aff. ¶ 4; Compl. ¶ 15
(ECF No. 1). Twenty of these residences are staffed with long
term staff (“LTS”) who work according to a
seven-days-on, seven- days-off staffing and compensation
schedule. MacDonald Aff. ¶ 5. Port Resources utilizes a
bi-weekly payroll, with the workweek starting on Sunday and
ending on Saturday. Pl's. Ex. B 1, 4 (ECF No. 7-4). As an
LTS, part of Giguere's hours- Thursday through
Saturday-fell within the first week of the pay period, and
part of his hours-Sunday through Thursday-fell within the
second week of the pay period. Pl's. Ex. B 1. The LTS
schedule provides for four unpaid, four-hour breaks over the
course of the seven-day shift and eight hours of unpaid sleep
time per night. Schafer Aff. ¶ 5 (ECF No. 12-2);
Pl's. Ex. B. So, within the two-week pay period, LTS work
one seven-consecutive-day shift (a period of 168 hours) for
which they receive 80 hours of working time at the regular
pay rate, 16 hours of work at the overtime rate, 16 hours of
unpaid break time, and 56 hours of unpaid sleep time. Schafer
Aff. ¶ 5.
of the Port Resources LTS work in residences without
overnight awake staff. MacDonald Aff. ¶ 6. The Port
Resources policy anticipates that their sleep time may be
interrupted on occasion. If LTS were forced to get up and
care for a client, they “could document the incident in
clinical notes and complete a hand punch correction” in
order to receive compensation. Compl. ¶ 30; Schafer Aff.
¶ 3. Where an interruption causes the LTS not to have at
least five hours of sleep time, the entire eight hour period
is compensable “working time.” Schafer Aff.
addition, Port Resources provides overnight awake staff in
residential facilities where the LTS “could not
generally enjoy eight hours of uninterrupted sleep
time” due to the client needs. MacDonald Aff. ¶ 5.
On prior occasions where LTS without overnight awake staff
reported a “pattern of disrupted sleep, ” Port
Resources moved clients into more supported residences and,
in one instance, adjusted to a different shift schedule.
MacDonald Aff. ¶ 8.
worked as one of two alternating LTS at a two-client
residence, which did not have overnight awake staff.
MacDonald Aff. ¶¶ 7-8. Giguere followed the LTS
schedule, and worked for seven days, followed by seven days
off. Giguere Decl. ¶¶ 5-6. Giguere claims that he
was usually the only employee responsible for the care of the
clients overnight and that client needs would
“often” wake him. Giguere Decl. ¶¶ 8,
12. Giguere asserts that “[t]hose similarly situated
had similar overnight responsibilities.” Compl. ¶
22. Giguere says that he did not seek compensation for some
of his nighttime work because it was “made clear to
[LTS] . . . in their training that they would not be
compensated” for incidents occurring within their sleep
time that took less than an hour. Compl. ¶ 24; Giguere
Decl. ¶ 11.
Resources objects that Giguere did not make Port Resources
aware of the interrupted sleep. MacDonald Aff. ¶ 8. In
addition, on the three occasions that Giguere requested
compensation for interrupted sleep time, he received it.
MacDonald Aff. ¶ 8. This included two occasions on which
Giguere requested the entire eight-hour period to be
compensated but did not properly document the time in accord
with Port Resources protocol. Schafer Aff. ¶ 6.
issue before me now is whether Giguere has made a sufficient
showing that the proposed class is similarly situated.
FLSA requires employers to pay overtime to employees who work
more than 40 hours per week. 29 U.S.C. § 207. A
“workweek” is seven consecutive 24-hour periods.
29 C.F.R. § 778.105. The workweek may begin at any hour
on any day, but “[o]nce the beginning time of an
employee's workweek is established, it remains
regulations exist for employees who are required to work
around the clock, and two are pertinent here. First,
Where an employee is required to be on duty for 24 hours or
more, the employer and the employee may agree to exclude . .
. a bona fide regularly scheduled sleeping period of not more
than 8 hours worked, provided . . . the employee can usually
enjoy an uninterrupted night's sleep.
. . . If the sleeping period is interrupted by a call to
duty, the interruption must be counted as hours worked. If
the period is interrupted to such an extent that the employee
cannot get a reasonable night's sleep, the entire period
must be counted.
29 C.F.R. § 785.22(a)-(b). Second,
An employee who resides on his employer's premises on a
permanent basis or for extended periods of time is not
considered as working all the time he is on the premises.
Ordinarily, he may engage in normal private pursuits and thus
have enough time for eating, sleeping, entertaining, and
other periods of complete freedom from all duties when he may
leave the premises for purposes of his own. It is, of course,
difficult to determine the exact hours worked under these