United States District Court, D. Maine
DAVID GIGUERE, on his own behalf and on behalf of those similarly situated, Plaintiff,
PORT RESOURCES, INC., Defendant.
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
TORRESEN UNITED STATES CHIEF DISTRICT JUDGE.
me are the parties' cross motions for summary judgment.
(ECF Nos. 53, 56.) Three counts remain in this
case. 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.
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.
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.
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).
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 ¶
2012-2015, the LTS model, including the schedule for sleep
and work in the position, was discussed with potential
employees. SMF ¶ 46. 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
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
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
If anyone has any questions, please feel free to contact the
Director of Human Resources.
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
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). 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.
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.
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. StudentCity.com, 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).
Fair Labor Standards Act
Statutory and Regulatory Framework 1. The
Fair Labor Standards Act
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).
The Code of Federal Regulations
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. 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 and 785.21 set forth the general rule that sleep time
is considered work time. 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.
785.22 and 785.23 allow employers to carve sleep time out of
compensable time where certain conditions are met. Section
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:
residing on employer's ...