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Giguere v. Port Resources Inc.

United States District Court, D. Maine

April 27, 2018

DAVID GIGUERE, on his own behalf and on behalf of those similarly situated, Plaintiff,



         Before me are the parties' cross motions for summary judgment. (ECF Nos. 53, 56.) Three counts remain in this case.[1] Count One alleges failure to pay overtime under the Fair Labor Standards Act (“FLSA”), and it is the only count pursued as a collective action. Count Two alleges a breach of the Maine Payment Wage Law. Count Three alleges a breach of the Maine Minimum Wage Law. The Defendant Port Resources seeks summary judgment on Counts One and Three. David Giguere, the named Plaintiff in Count One and sole Plaintiff in Counts Two and Three, seeks summary judgment on all three counts. For the following reasons, the Defendant's motion is DENIED and the Plaintiffs' motion is GRANTED.


         Defendant Port Resources is a nonprofit organization that provides housing and services to adults with developmental disabilities and behavioral health challenges. Trained staff provide clients with direct support in skills development, medication administration, personal care assistance, and community integration. The program has 24 group residences, with between one and four clients in each residence.

         Twenty of these residences are organized according to the long term staff (“LTS”) model, which is the focus of this suit. In the LTS model, each residence is primarily supported by one LTS, who works seven days on, followed by seven days off, alternating weekly with another LTS assigned to the same residence. Eleven of the LTS residences also have overnight awake staff. SMF ¶ 22. Overnight staff are responsible for attending to clients during the night, as necessary. SMF ¶ 33. Overnight staff sometimes enlist the aid of LTS during their sleep time. SMF ¶ 33.

         Each LTS shift runs from Thursday to Thursday, with seven consecutive nights when the LTS stays at the residence. The shift includes eight hours of unpaid sleep time each night, as well as a four-hour unpaid breaks during the day every Friday, Monday, Tuesday, and Wednesday. Port Resources treats all other hours in the shift as compensated working time. SMF ¶ 28. Payroll is computed from Sunday to Sunday, so LTS generally work 40 hours in the first week (Thursday to Saturday), and 56 hours in the second week (Sunday to Thursday), before going off duty for seven days. Port Resources bills MaineCare for reimbursement on a per diem basis. SMF ¶¶ 169-70. The per diem rate is determined through a comparison of the actual hours of direct support provided, including LTS overnight hours, against the hours approved by DHHS. MacDonald Aff. ¶ 5 (Oct. 31, 2017) (ECF No. 59-1).

         The LTS model was adopted in 2012, and direct service professionals working for Port Resources at the time were given a choice to be hired as an LTS or stay on in their current role. SMF ¶ 144. If they chose the latter, however, there was no guarantee they would remain at the same residence. SMF ¶ 144.

         From 2012-2015, the LTS model, including the schedule for sleep and work in the position, was discussed with potential employees. SMF ¶ 46.[2] Jenn Dearborn, Associate Director of Human Resources, has been the person primarily responsible for reviewing and explaining the LTS schedule and sleep time policy with prospective LTS. SMF ¶ 49. In 2015, Schafer drafted a written version of the sleep policy that did not make any substantive changes to the policy. SMF ¶¶ 55-57. The written Sleep Time Agreement stated:

This confirms the agreement between Port Resources and a Direct Support Professional who may be assigned to be on duty for one or more twenty-four (24) shifts. Under wage and hour guidelines, 9 C.F.R. sections 785.22 and 785.23, where an employee is required to be on duty for 24 hours or more, the employer and the employee may agree to exclude from hours worked a bona fide meal period and a bona fide regularly scheduled sleeping period of not more than 8 hours, provided that adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an interrupted night's sleep.
If the sleeping period is interrupted by a call to duty, the interruption will be counted as hours worked. If the employee cannot get at least 5 hours' sleep during the scheduled sleep period, the entire time should be treated as working time. The eight-hour sleeping period will be excluded from hours worked unless performance of work duties is required.
If the Direct Support Professional does have to work during the sleep period, they should record their time worked on the daily service charts and notify their Program Manager of the interruption so that their electronic time sheet can be corrected.
If anyone has any questions, please feel free to contact the Director of Human Resources.

         Harmon Dep. Ex. 2 (ECF No. 55-10). The Plaintiffs who were already working in 2015 signed the agreement after an initial period of employment; the Plaintiffs who started with Port Resources in or after 2015 signed it before starting work. SMF ¶¶ 58-61.

         Celia Shafter, Director of Human Resources, explained that calls to duty include instances where the client needs assistance, becomes sick, or falls out of bed “so that they had to tend to them.” SMF ¶ 119. She stated that qualifying interruptions constitute the time taken “to attend to a client, all time spent attending to the client is considered to be working time.” SMF ¶ 32; Schafer Aff. 1 (ECF No. 52-30).[3] In addition, LTS could be compensated for non-client-specific interruptions like fire drills. SMF ¶ 123. The LTS were responsible for recording interruptions. SMF ¶ 117. All LTS were expected to log interruptions in the client's daily service chart and notify their manager to adjust the timesheet. SMF ¶ 32. LTS with overnight staff were also required to obtain confirmation from the overnight staff that the LTS had to get up to attend to a client. SMF ¶ 120.

         The parties dispute what kinds of interruptions fell under the policy or otherwise should have been compensated, such as whether LTS were expected to monitor or be aware of whether a client was awake during the night. SMF ¶¶ 34-37, 151-58. The parties also dispute whether the Plaintiffs were discouraged from reporting calls to duty or were told that only calls to duty that took a certain amount of time should be reported. SMF ¶¶125-35. In addition, eight of the LTS reported not being able to get five consecutive hours of sleep on three to seven nights of a shift. SMF ¶¶ 159-66. Port Resources denies this assertion, noting that these LTS had no recorded interruptions on most of their overnights. SMF ¶¶ 159-66. All of the Plaintiffs have been paid for all sleep time interruptions recorded on their timesheets. SMF ¶ 62.


         Summary judgment is appropriate when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A dispute is genuine where a reasonable jury could resolve the point in favor of either party. Chung v., Inc., 854 F.3d 97, 101 (1st Cir. 2017). A fact is material where it could influence the outcome of the litigation. Id. On a motion for summary judgment, courts must construe the record in the light most favorable to the non-movant and resolve all reasonable inferences in the non-movant's favor. Burns v. Johnson, 829 F.3d 1, 8 (1st Cir. 2016). Cross-motions for summary judgment proceed under the same standards applicable to standalone summary judgment motions, but each motion is addressed separately. Fadili v. Deutsche Bank Nat'l Tr. Co., 772 F.3d 951, 953 (1st Cir. 2014).


         I. Fair Labor Standards Act

         A. Statutory and Regulatory Framework 1. The Fair Labor Standards Act

         The FLSA, 29 U.S.C. § 201 et seq., provides:

Except as otherwise provided in this section, no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

29 U.S.C. § 207(a)(1).

         2. The Code of Federal Regulations

         Provisions contained in Chapter V-Wage and Hour Division, Department of Labor, Subchapter B-Statements of General Policy or Interpretation Not Directly Related to Regulations, found in 29 C.F.R. §§ 777-94, are also relevant.[4] Interpretive Bulletins on Hours Worked, explain how the Wage and Hour Division (“WHD”) will treat sleep time occurring during the course of employment. 29 C.F.R. §§ 785.20-.23.

         Sections 785.20 and 785.21 set forth the general rule that sleep time is considered work time.[5] Section 785.20 provides: “Under certain conditions an employee is considered to be working even though some of his time is spent in sleeping or in certain other activities.” 29 C.F.R. § 785.20. Section 785.21, captioned “Less than 24-hour duty, ” provides: “An employee who is required to be on duty for less than 24 hours is working even though he is permitted to sleep or engage in other personal activities when not busy.” 29 C.F.R. § 785.21.

         Sections 785.22 and 785.23 allow employers to carve sleep time out of compensable time where certain conditions are met. Section 785.22 provides:

         Duty of 24 hours or more.

Where an employee is required to be on duty for 24 hours or more, the employer and the employee may agree to exclude bona fide meal periods and a bona fide regularly scheduled sleeping period of not more than 8 hours from hours worked, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night's sleep. If sleeping period is of more than 8 hours, only 8 hours will be credited. Where no expressed or implied agreement to the contrary is present, the 8 hours of sleeping time and lunch periods constitute hours worked.

29 C.F.R. § 785.22. Section 785.23 provides:

         Employees residing on employer's ...

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