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Giguere v. Port Resources, Inc.

United States District Court, D. Maine

November 30, 2016

DAVID GIGUERE, Plaintiff,
v.
PORT RESOURCES, INC., Defendant.

          ORDER ON PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION

          Nancy Torresen, United States Chief District Judge

         David 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.

         FACTUAL BACKGROUND

         Port 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.

         Twenty 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. ¶ 3.

         In 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.

         Giguere 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.

         Port 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.

         The issue before me now is whether Giguere has made a sufficient showing that the proposed class is similarly situated.

         ANALYSIS

         I. FLSA Protections

         The 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 fixed.” Id.

         Special 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 circumstances ...

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