Earlier this month, the Court of Appeals held that the federal Portal-to-Portal Act–which provides that time spent by workers traveling to and from work is not compensable–has not been implicitly adopted into Maryland law. Put another way, Maryland law does not define “compensable work” to exclude travel time.
At issue in the case–which was actually two separate cases consolidated for purposes of the appeal–was whether construction workers were entitled to compensation for time spent waiting at a parking area and traveling to and from the MGM National Harbor construction site in Prince George’s County.
As there was no parking available on the construction site itself, two subcontractors provided their workers with a parking area located about 2.3 miles from the construction site. The workers were not compensated for waiting for the buses at the parking area that would transport them to the worksite, nor were they compensated for travel time from the parking area to the worksite. On average, this travel time lasted approximately two hours per day.
The issue before the Court was whether this significant travel time was compensable. The applicable federal law—the Portal-to-Portal Act (PPA), which is an amendment to the Fair Labor Standards Act (FLSA)—makes many activities non-compensable, including:
- walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and
- activities which are preliminary to or postliminary to the principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, the principal activity or activities.
29 U.S.C. § 254(a). If Maryland law implicitly adopted the PPA, then the travel time from the parking lot to the construction site would not be compensable.
In assessing whether Maryland law adopted the PPA, the Court of Appeals looked to three separate statutes: the Maryland Wage and Hour Law (“MWHL”), Md. Code Ann., Lab. & Empl. §§ 3-401 to 3-431, the Maryland Wage Payment and Collection Law (“MWPCL”), LE §§ 3-501 to 3-509, and portions of the Code of Maryland Regulations (“COMAR”) which define “work.” After a detailed analysis of each statute, the Court of Appeals held that:
the plain language of the MWHL, the MWPCL, and COMAR demonstrate that the PPA has not been adopted or incorporated as part of Maryland law. There is no reference, mention, or citation to the PPA in the Maryland statutes or regulations. Critically, although the MWHL may be Maryland’s counterpart of the FLSA, the General Assembly has not enacted an equivalent of the PPA in Maryland, and the General Assembly did not incorporate, either partially or entirely, the provisions of the PPA by reference.
The Court went on to note that reading any of these wage enforcement laws as “silently or implicitly” adopting the PPA would “undermine our process of statutory construction, pursuant to which we neither add nor delete words to a clear and unambiguous statute to give it a meaning not reflected by the words that the General Assembly used or engage in forced or subtle interpretation in an attempt to extend or limit the statute’s meaning.”
The upshot of the Court’s decision is that what constitutes “work” under Maryland law is not limited to what is compensable work under the PPA and FLSA. As such, the issue of whether the workers are entitled to compensation for the time spent waiting at the parking area and traveling to the construction site must be resolved under Maryland law—not the PPA. This would involve “findings by a trier of fact as to whether the workers were required to report to the parking area, whether the parking area was the employer’s premises or a prescribed workplace, or whether the workers were required to be on duty, and hence were engaged in hours of work as set forth by COMAR[.]”
Though the holding of the Court appears significant at first blush, it’s practical import is less clear. Each case came up on appeal after the trial courts had granted judgment in favor of the subcontractor defendants – one case on a motion for summary judgment, the other case on a motion for judgment at trial. As such, the Court of Appeals’ holding that legal error occurred merely means that the question of whether the travel time was compensable is a question for the factfinder–the jury–and cannot be decided as a matter of law. Both cases will now either be heard by a jury, or otherwise settle out of court.
Going forward, Maryland employers are now on notice that they cannot rely on the federal Portal-to-Portal Act to avoid paying employees for travel time. This case makes it more likely that similar wage payment claims based upon uncompensated travel time will also be more difficult to resolve on summary judgment.