GIGUERE v. PORT RESOURCES INC

Filing 21

ORDER ON PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION - granting 7 Motion for Conditional Certification and Provision of Notice Under 29 U.S.C. § 216(b). By JUDGE NANCY TORRESEN. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DAVID GIGUERE,
Plaintiff,
v.
PORT RESOURCES, INC.,
Defendant.

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ORDER ON PLAINTIFF’S MOTION
FOR CONDITIONAL CERTIFICATION
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

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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. ¶¶ 56. 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.

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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 and any
reasonable agreement of the parties which takes into consideration all
of the pertinent facts will be accepted.
29 C.F.R. § 785.23.

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In addition, the Department of Labor Wage and Hour Division (“WH”) has
issued an enforcement policy on compensation for sleep time for employees at
residential facilities. WH provides:
Under circumstances where an employee does not maintain his or her
permanent residence on the premises and does not otherwise reside on
the premises 7 days a week, WH will consider an employee who sleeps
in private quarters, in a homelike environment, to reside on the
premises for an extended period of time within the meaning of [§] 785.23
if the employee resides on the premises for a period of at least 120 hours
in a workweek.
U.S. Dep’t of Labor, Wage & Hour Div., Enforcement Policy for Hours Worked in
Residential Care Establishments, 1988 WL 614199, at *2 (June 30, 1988). The WH
policy specified that the minimum requirements to set aside sleep time are that the
employee be compensated for eight hours in each of five consecutive 24-hour periods
and sleep on the premises for all sleep periods in that 120-hour period. Id. This
statutory and regulatory framework guides my analysis.
II.

FLSA Conditional Certification
Employees may enforce their FLSA rights through a collective action lawsuit

if they are “similarly situated.” 29 U.S.C. § 216(b). The FLSA does not define this
term, and neither the Supreme Court nor the First Circuit has articulated a rule. See
Saunders v. Getchell Agency, No. 1:13-224, 2014 WL 580153, at *6 n.6 (D. Me. Feb.
12, 2014). District courts within the First Circuit have approached class certification
through a two-step process. See Johnson v. VCG Holding Corp., 802 F. Supp. 2d 227,
233 (D. Me. 2011); Prescott v. Prudential Ins. Co., 729 F. Supp. 2d 357, 364 (D. Me.
2010).

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In the first stage, the plaintiff must make a “modest factual showing” that he
and others with similar—but not necessarily identical—jobs suffered from a common
unlawful policy or plan. Prescott, 729 F. Supp. 2d at 364 (citation omitted); see also
O’Donnell v. Robert Half Int’l, Inc., 429 F. Supp. 2d 246, 249 (D. Mass. 2006). The
court’s analysis is based on the pleadings and affidavits, and the standard of review
is “fairly lenient.” Saunders v. Getchell Agency, No. 1:13-224, 2014 WL 580153, at *6
(D. Me. Feb. 12, 2014) (citation omitted). If the plaintiff meets its burden, the court
may approve of an appropriate notice that invites other similarly situated employees
to opt into the collective action. Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169
(1989).
In the second stage of the process, generally after discovery, the defendant may
move for decertification, and the court will determine whether the employees who
have opted into the class are indeed similarly situated. See Comer v. Wal-Mart Stores,
Inc., 454 F.3d 544, 546-47 (6th Cir. 2006).
III.

Whether the Plaintiffs are Similarly Situated
Giguere presents two theories of recovery. First, he asserts that Port

Resources’ LTS schedule does not qualify for the regulatory exemptions from
compensated sleep time. The LTS did not work a 24-hour shift on days they had
breaks from duty, which, he argues, renders inapplicable the 29 C.F.R. § 785.22
exception. Moreover, by dividing workweeks into a 40-hour week for week one and a
56-hour week for week two, Port Resources’ employees do not reside on the employer’s
premises for extended periods of time in a “workweek,” as provided in the regulations

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and policy described above. See §§ 778.105, 785.23; WH Enforcement Policy, 1988 WL
614199.
Second, Giguere asserts that in facilities without overnight awake staff,
employees like Giguere must sleep with one ear open. Such employees, the Plaintiff
argues, must be paid for all of their sleep time because they are fulfilling Port
Resources’ legal or contractual obligation to have a person on duty 24-7 and therefore
not taking a “bona fide regularly scheduled sleeping period,” as provided in § 785.22.
Alternatively, at minimum, employees must be paid for the time they were woken to
care for clients, even if the time is of a short duration.
In line with his theories, Plaintiff proposes two FLSA collectives. The proposed
“Short Duty Class” includes:
All current and former Direct Support Professional – Long Term Staff
or Therapeutic Staff employees of Port Resources who in the three years
prior to the filing of this Motion were required to stay overnight to watch
over a Port Resources customer or customers and were not paid for all
sleep time when they were not on duty for 24 hours.
Pl.’s Mot. for Cond. Cert. 5. The proposed “Sole Caretaker Class” includes:
All current and former Direct Support Professional – Long Term Staff
or Therapeutic Live in Staff employees of Port Resources who in the
three years prior to the filing of this Motion were solely responsible for
a Port Resources customer or customers overnight and were not paid for
all sleep time.
Pl.’s Mot. for Conditional Certification 5. Port Resources objects to conditional
certification on the grounds that Giguere did not minimally establish that: (i) there
is a common unlawful policy, (ii) the proposed Short Duty Class is similarly situated
to Giguere, or (iii) other potential class members are interested in joining the suit.
Def.’s Opp’n 6-9 (ECF No. 12).
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A.

Common Unlawful Policy

Giguere asserts that he is similarly situated to the other LTS who worked this
schedule and were not fully compensated for unpaid sleep time. Pl.’s Mot. for Cond.
Cert. 4-5; Giguere Decl. ¶ 13. Port Resources responds that the LTS sleep time policy
is “facially valid” and “lawful.” Def.’s Opp’n 6. While Port Resources confirms the LTS
schedule that Giguere describes in his declaration, it rejects that there is any
impropriety in the formal schedule or any alleged policies conveyed at training. Def.’s
Opp’n 6-9; Macdonald Aff. ¶¶ 5, 8.
Port Resources first argues that its LTS schedule complies with both § 785.22
and § 785.23, because the “extended period of time” requirement is satisfied where
the employee resides on the premises for seven consecutive days and overnights. Def’s
Opp’n 4 (citing Shannon v. Pleasant Valley Community Living Arrangements, Inc., 82
F. Supp. 2d 426, 431 (W.D. Pa. 2000)). Second, Port Resources asserts that Giguere
failed to make any showing that violations of this lawful policy, in employee training
or in practice, “were so widespread or common that they could be said to have been
intended or condoned by the employer, thereby becoming an informal, unwritten
policy.” Def.’s Opp’n 7 (citing Brickley v. Dolgencorp, Inc., 272 F.R.D. 344, 347-48
(W.D.N.Y. 2011)). Since Port Resources’ policy is itself permissible, the Defendant
argues, Giguere is merely able to allege “deviations from a common lawful policy”
specific to himself. Def.’s Opp’n 7.
Port Resources’ factual and legal arguments are premature at the first stage
of conditional certification. Because Port Resources confirmed the common LTS
schedule and because Giguere alleges that Port Resources “made clear” during
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training that employees would not be compensated for short periods of sleep time
work, I find that Giguere has made a sufficient showing of similarly situated potential
class members.
B.

Short Duty Class Not Similarly Situated to Giguere

Port Resources argues in the alternative that even if the Court approves of the
Sole Caretaker Class, it should reject the Short Duty Class due to the lack of a
common unlawful policy specific to this group. Def.’s Opp’n 9. Port Resources
acknowledges that the four unpaid, four-hour breaks may render § 785.22
inapplicable, thus making sleep time compensable if the employee’s shift is otherwise
24 hours or longer. Def.’s Opp’n 9 (citing WH Enforcement Policy, 1988 WL 614199,
at *3). Nonetheless, Port Resources argues that the unpaid sleep time policy is
permissible for the Short Duty Class under § 785.23 as a “reasonable agreement.”
Def.’s Opp’n 9. Some courts have permitted similar “reasonable agreements”
regarding sleep time, even if employees have “ ‘periods of complete freedom from all
duties’ and are permitted, as here, to leave the employer’s premises.” Shannon, 82 F.
Supp. 2d at 431 (quoting Bouchard v. Reg’l Governing Bd., 939 F.2d 1323, 1330 (8th
Cir. 1991).
At this stage of the proceedings and without adequate factual development, I
am unable to conclude that Port Resources’ LTS schedule met regulatory
requirements. I find, however, that Giguere has established minimal reasonable
grounds that either by the four-hour breaks or by the structure of the seven-day shift
in three and four day workweeks, he and others similarly situated may be entitled to

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relief under the FLSA. An in-depth review of the factual and legal issues underlying
this defense will be done at the second stage.
C.

Other Potential Plaintiffs’ Interest

Finally, Port Resources argues that Giguere failed to show that others are
interested in joining the suit. Def.’s Opp’n 7-9. In Johnson v. VCG Holding Corp., the
court held that at the first stage of conditional certification, the plaintiff has the
burden of making a minimal factual showing that similarly situated individuals not
only exist, but also want to opt into the collective action. 802 F. Supp. 2d at 237. Other
district courts in the First Circuit, however, have declined to apply this so-called
“interest” requirement. See, e.g., Battistini v. La Piccola Fontana, Inc., No. 15-2167,
2016 WL 3566212, at *3 (D.P.R. June 27, 2016) (“[i]t makes no sense to disallow
conditional certification now before Plaintiffs have had an opportunity to put
potential plaintiffs on notice of this suit and their right to join it.”).
In this case, the pleadings and affidavits do not name other interested
individuals who might join the suit. But Port Resources confirmed that numerous
employees follow Giguere’s LTS schedule. Macdonald Aff. ¶¶ 5-7. And Giguere has
personal knowledge of the type of work and the hours of work that employees
provided to Port Resources, as well as the alleged policy conveyed at training that
interruptions of sleep less than one hour would not be compensated. Further, Giguere
no longer works at Port Resources, having injured himself in a slip and fall on a wet
floor in his residential facility. Compl. ¶ 21. Because he is no longer with the company
and because Port Resources facilities are scattered throughout southern Maine, it is
more difficult in this case for the named plaintiff to find other coworkers willing to
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join the collective than it would be in cases where employees are still working
together at the same facility. See Compl. ¶ 15. Under these circumstances, I find that
there is sufficient evidence of similarly situated potential class members to justify
notice. At the second phase, Port Resources may revisit its objections as to whether
the class is sufficiently similar in a motion to decertify.
IV.

Equitable Tolling of the Statute of Limitations
Giguere requests that the Court toll the statute of limitations for potential

class members from June 14, 2016, the filing date of his motion for conditional
certification. Pl.’s Mot. for Cond. Cert. 6 n.12. The FLSA requires an employee to
commence an action for unpaid wages within two years, or three years if the cause of
action arises out of a willful violation of the statute. 29 U.S.C. § 255(a). An FLSA
cause of action “accrues, at the latest, when a plaintiff’s employment ends.” Pike v.
New Generation Donuts, LLC, No. 12-12226, 2016 WL 707361, at *4 (D. Mass. Feb.
20, 2016). The action commences for a named plaintiff when she files both a complaint
naming herself as a plaintiff and her written consent to be a party plaintiff. 29 U.S.C.
§ 256(a). For all other claimants, an action is considered commenced when they file
their “written consent . . . in the court in which the action was commenced.” 29 U.S.C.
§ 256(b).
Equitable tolling is a “rare remedy to be applied in unusual circumstances.”
Wallace v. Kato, 549 U.S. 384, 396 (2007). A plaintiff bears the burden of showing
that he has been pursuing his rights diligently and that some extraordinary
circumstances stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

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The statute of limitations is not a problem for Giguere. His cause of action
accrued on August 6, 2015, when he stopped working for Port Resources. Compl. ¶ 21.
He filed suit with his consent form in February of 2016, well before the statute of
limitations ran. Pl.’s Ex. 1 (ECF No. 1-1). The clock is ticking, however, for other
potential claimants until they opt in and file consent forms with this Court. 29 U.S.C.
§ 256(b). Giguere has not made any allegations or arguments regarding potential
claimants that would be barred, and I accordingly find he has failed to meet his
burden on this issue.
V.

Mailing and Posting Notice
Giguere requests that Port Resources provide a computer readable file with

the names, dates of employment, social security numbers, and last known addresses
and phone numbers of all potential class members. Pl.’s Mot. for Cond. Cert. 6.1 The
requested information, other than the social security numbers, is essential to
identifying potential opt-in plaintiffs and should be provided. The plaintiffs must take
care to safeguard the information.
VI.

Content of Notice and Consent Form
The court must review any notice to potential class members to determine if it

is appropriate, does not endorse or discourage any action, and is fair and factual.
Hoffman-La Roche, Inc., 493 U.S. at 170-74. Pursuant to a conference of counsel on
November 30, 2016, the definition of the collective to be contained in the notice is:

Giguere’s authority for this request, In re Penthouse Executive Compensation Litigation,
rejected the plaintiff’s request for social security numbers due to privacy and security concerns. No. 101145, 2010 WL 4340255, at *5 (S.D.N.Y. Oct. 27, 2010).
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“All current and former long term staff who worked a seven-days-on and seven-daysoff schedule, who were required to remain on the premises during their sleep time,
and who were employed at any time from December 1, 2013 to the present.” In
addition, Giguere accepts Port Resources’ edits to the notice. Pl.’s Reply 7 n.2 (ECF
No. 13).
CONCLUSION
For the reasons stated above, I GRANT the Plaintiff’s motion for conditional
certification of this collective action.

SO ORDERED.
/s/ Nancy Torresen
United States Chief District Judge
Dated this 30th day of November, 2016.

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