GIGUERE v. PORT RESOURCES INC

Filing 66

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT - denying 53 Motion for Summary Judgment; granting 56 Motion for Summary Judgment. By JUDGE NANCY TORRESEN. (mnw)

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DAVID GIGUERE,
on his own behalf and on behalf of
those similarly situated,
Plaintiff,
v.
PORT RESOURCES, INC.,
Defendant.

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) Docket No. 2:16-cv-58-NT
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ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
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.

Count Four, which alleged breach of contract and unjust enrichment, was withdrawn. Pl.’s
Mot. 2 n.1 (ECF No. 56).
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FACTUAL BACKGROUND
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
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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

The Plaintiffs deny Port Resources’ assertion that the policy was explained so the potential
employees understood and agreed to it, stating that the policy was a “condition of the job.” SMF ¶ 46;
see also SMF ¶¶ 51-54.
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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. 5230).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

The Plaintiffs argue that only interruptions of a “clinical nature” were counted and cite as
record authority for this the deposition of HR Director Schafer. SMF ¶ 32. Schafer stated in her
deposition that the employee was instructed to document interruptions in “the clinical daily
documentation and report to the manager what happened—why they got up during the night.” Schafer
Dep. 28 (ECF No. 52-1). (Port Resources further asserted that LTS are not clinicians and most of their
services were not of a clinical nature. SMF ¶ 118; MacDonald Aff. ¶ 4 (Oct. 31, 2017) (ECF No. 59-1)).
The Plaintiffs’ qualification to SMF ¶ 32 does not strike me as a denial or qualification of the asserted
fact that LTS could be compensated for calls to duty or to attend to a client.
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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.
LEGAL STANDARD
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. 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 nonmovant’s favor. Burns v. Johnson, 829 F.3d 1, 8 (1st Cir. 2016). Cross-motions for
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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).
DISCUSSION
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

“The United States Department of Labor (DOL) has promulgated substantial interpretive
guidance designed to assist in assessing the compensability of waiting time under FLSA. Although
these interpretive rules are non-binding, [courts] have nonetheless . . . turned to these longstanding
DOL regulations in resolving FLSA waiting time disputes.” Brigham v. Eugene Water & Elec. Bd., 357
F.3d 931, 940 (9th Cir. 2004) (internal citations omitted). “[I]nterpretive rules may sometimes function
as precedents, [but] they enjoy no Chevron status as a class.” United States v. Mead Corp., 533 U.S.
218, 232 (2001). An agency interpretation not entitled to Chevron deference is often entitled to respect
based on its “power to persuade.” Mead, 533 U.S. at 227-28 (citing Skidmore v. Swift & Co., 323 U.S.
134 (1944)); see also William Eskridge Jr. & Lauren E. Baer, The Continuum of Deference: Supreme
Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083,
1088. Skidmore held that “[w]e consider that the rulings, interpretations and opinions of the
Administrator under [the FLSA], while not controlling upon the courts by reason of their authority, do
constitute a body of experience and informed judgment to which courts and litigants may properly
resort for guidance.” Skidmore, 323 U.S. at 140. The stringency of judicial review depends on “the
4

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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 premises or working at home.

thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency with
earlier and later pronouncements, and all those factors which give it power to persuade, if lacking
power to control.” Id.
Generally, time at the worksite is considered hours worked. 29 C.F.R. § 785.7 (quoting
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946)).
5

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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. This rule would apply, for
example, to the pumper of a stripper well who resides on the premises
of his employer and also to a telephone operator who has the
switchboard in her own home.
29 C.F.R. § 785.23.
3.

Department of Labor Guidance

The WHD has also issued less formal guidance to employers on sleep time
compensation issues in opinion letters and enforcement memoranda and bulletins.
a.

The 1981 Letter

In February of 1981, the WHD issued an opinion letter to clarify two previous
letters dealing with deducting sleep time from the hours of houseparents sleeping at
group homes for mentally disabled individuals. Dep’t of Labor, Opinion Letter Fair
Labor Standards Act (1981), 1981 WL 179033 (“1981 Letter”). The houseparents in
question, who worked five or six days in a row, maintained permanent residences
elsewhere in the community but slept in private quarters at the group home while on
duty there. The houseparents had several hours off each afternoon where they were
free to leave the premises and do whatever they chose to do, thus putting them
outside of § 785.22.
The 1981 Letter answered two questions pertinent to this litigation. First, the
WHD opined that the fact that the houseparents had separate residences did not
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disqualify them from fitting within § 785.23 as employees who reside on the
employer’s premises for extended periods of time. 1981 Letter, at *1. “In general, we
take the position that employees who reside on their employer’s premises five days a
week are considered to reside there ‘for extended periods of time.’ ” Id. Second, the
1981 Letter clarified that “extended periods of time” could be satisfied two ways,
either (1) by working for 120 hours (ignoring off-time duty that may be allowed for a
few hours each day) within a single week; or (2) by spending five consecutive days or
five consecutive nights on the premises even though they worked less than 120 hours
in the week. Id., at *2.
b.

The 1988 Memo

On June 30, 1988, the WHD issued additional guidance pertaining to
residential care facilities. Dep’t of Labor, Hours Worked in Residential Care (Group
Home) Establishments—Sleep Time and Related Issues—Enforcement Policy (June
30, 1988), 1988 WL 614199 (“1988 Memo”). The WHD explained that § 785.23 has
three basic requirements: (1) that the employee reside on the employer’s premises
permanently or for extended periods of time, (2) that the employer and employee
enter a reasonable agreement to exclude sleep time, and (3) the employer provide a
private space for the employee’s sleep.
The 1988 Memo explained terms “used in the enforcement policy” that “have
caused some difficulty and are being defined for further guidance.” 1988 Memo, at *2.
A “workweek,” the 1988 Memo stated, “means seven consecutive 24-hour periods (29

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C.F.R. § 778.105).”6 Id. Regarding the requirement that an employee reside at the
facility for an extended period of time, the 1988 Memo clarified that:
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 IB 785.23
if the employee resides on the premises for a period of 120 hours in a
workweek.
WH is refining and restating the minimum conditions required to meet
this rule. An employee will be found to reside on the premises for an
extended period of time if:
(1) The employee is on duty at the group home and is compensated for
at least eight hours in each of five consecutive 24-hour periods; and
(2) The employee sleeps on the premises for all sleep periods between
the beginning and end of this 120-hour period.
1988 Memo, at *3.
Regarding the requirement that the employer and employee enter a reasonable
agreement, the 1988 Memo stated that:
where sleep time is to be deducted, the employer should determine if the
following criteria are met:
(1) the employer and the employee have reached agreement in advance
that sleep time is being deducted;
(2) adequate sleeping facilities with private quarters . . . were
furnished;7

6

Section 778.105, entitled “Determining the workweek,” provides:
An employee’s workweek is a fixed and regularly recurring period of 168 hours—seven
consecutive 24-hour periods. It need not coincide with the calendar week but may begin
on any day and at any hour of the day. . . Once the beginning time of an employee’s
workweek is established, it remains fixed regardless of the schedule of hours worked
by him.

29 C.F.R. § 778.105.
The requirement that the employee enjoy private quarters in a homelike environment is not
expressly found in the regulation, but it runs through the guidance. Dep’t of Labor, Exclusion of Sleep
Time from Hours Worked by Domestic Service Employees 3 (Apr. 25, 2016) (“2016 Bulletin”) (“a living
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(3) if interruptions occurred, employees in fact got at least five hours of
sleep during the scheduled sleeping period;
(4) employees are in fact compensated for any interruptions in sleep; and
(5) no more than eight hours of sleep time is deducted for each full 24hour on-duty period.
1988 Memo, at *4.
c.

The 2016 Bulletin

In 2016, the WHD stated that the requirement that the employer and employee
enter an agreement to exclude sleep time “is not burdensome, because an agreement
can be implied by the parties’ conduct.” Dep’t of Labor, Exclusion of Sleep Time from
Hours Worked by Domestic Service Employees 7 (Apr. 25, 2016) (“2016 Bulletin”).
The WHD explained that “the reasonable agreement should reflect the realities of the
particular situation; sleep time may only reasonably be excluded, for example, if a
home care employee regularly has the opportunity to sleep overnight, rather than if
the employee is present to actively provide around-the-clock care.” 2016 Bulletin 3.
The 2016 Bulletin also interpreted the term “uninterrupted night’s sleep” in
§ 785.22 to mean “at least five consecutive hours of sleep.” 2016 Bulletin 6. The WHD
explained:
this interpretation allows employers flexibility because it does not
require that an employee have eight hours of uninterrupted time to
consider the night ‘uninterrupted’ but reflects the reality that a worker
who is not permitted at least five hours in a row of uninterrupted time
cannot be said to have gotten a meaningful night’s sleep.
An employee can ‘usually’ get an uninterrupted night’s sleep if an
employer’s interruptions that prevent her from getting five consecutive
uninterrupted hours of sleep occur less than half the time. . . . In other
words, interruptions to an employee’s five consecutive hours of sleep
and sleeping space that is separate from the person receiving services . . . or any other employees”);
1988 Memo, at *3; 1981 Letter, at *2.

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time by the employer that occur during half or more than half of the
employee’s shifts are too frequent to meet the requirement.
2016 Bulletin 6 (internal citations omitted).
B.

Caselaw Interpreting Sleep-Time Exceptions in the Group Home
Context

Cases asserting claims for unpaid sleep time brought by employees working in
residential treatment facilities abound. Many of the employers have won on summary
judgment because as a matter of law the agreement (often implied) not to compensate
for sleep time was considered reasonable. Hendricks v. Okla. Prod. Ctr. Grp. Homes,
159 Fed. App’x 875 (10th Cir. 2005) (finding a reasonable agreement to exempt sleep
time); Braziel v. Tobosa Dev. Servs., 166 F.3d 1061, 1063 (10th Cir. 1999) (parties’
implied agreement satisfied the FLSA); Bouchard v. Reg’l. Governing Bd., 939 F.2d
1323, 1331 (8th Cir. 1991); Sidell v. Residential CRF, Inc., No. 1:08-cv-1699-SEBDML, 2010 WL 4723722, at *7 (S.D. Ind. 2010); Ormsby v. C.O.F. Training Servs.,
Inc., 194 F. Supp. 2d 1177, 1189 (D. Kan. 2002); Blackburn v. KS Elks, 40 F. Supp.
2d 1270 (D. Kan. 1999); but cf. Oliver v. Portside Care Cntr, No. 6:10-cv-1106-Orl31DAB, 2012 WL 72711 (M.D. Fla. Jan. 10, 2012) (denying summary judgment in
light of disputes of fact); Shannon v. Pleasant Valley Cmty. Living Arrangements, Inc.,
82 F. Supp. 2d 426, 432-33 (W.D. Pa. 2000) (denying summary judgment due to
disputes of fact about whether the agreement was reasonable in practice); Gay v.
Extended Family Concepts, 102 F. Supp. 2d 449, 457 (N.D. Ohio 2000) (dispute of fact
remained as to whether parties agreed to exempt sleep time). Yet none of the cases
cited by the parties have taken up the novel argument presented by the Plaintiffs
that § 785.23 does not apply because the employees do not reside for an extended
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period of time on their employers’ premises when their seven-day shift spans two
workweeks.
C.

Whether Section 785.23 Applies

Because LTS do not reside permanently in Port Resources’ facilities, in order
for § 785.23 to apply, Port Resources must establish that the LTS reside at the
facilities for an “extended period of time.” Garofolo v. Donald B. Heslep Assocs., Inc.,
405 F.3d 194, 199-200 (4th Cir. 2005) (the party seeking the benefit of § 785.23 bears
the burden of proving that it applies). Port Resources argues that its sleep policy
satisfies this criteria because the employees’ shift runs for seven consecutive days
and nights, they are on duty for more than eight hours every 24-hour period, and they
sleep on the premises each night. Def.’s Mot. 5 (ECF No. 53). This, Port Resources
contends, satisfies the requirement in the 1988 Memo that the employees reside on
the premises for at least 120 hours.
The Plaintiffs rejoin that the 1988 Memo does not just require residing at the
premises for 120 hours, but “at least 120 hours in a workweek.” Pl.’s Mot. 19 (ECF
No. 56). The 1988 Memo defined the term “workweek” because it had “caused some
difficulty,” and in doing so, it referred back to § 778.105 of the Code of Federal
Regulations.8 1988 Memo, at *2. Section 778.105 provides: “once the beginning time
of an employee’s workweek is established, it remains fixed regardless of the schedule
of hours worked by him.” 29 C.F.R. § 778.105. The Plaintiffs argue that an employer

8

“ ‘[W]orkweek’ - means seven consecutive 24-hour periods (29 C.F.R. § 778.105).” 1988 Memo,

at *2.

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cannot use one workweek (Sunday to Saturday) for overtime calculations and another
workweek (Thursday to Thursday) for determining whether employees are on
premises for an “extended period of time.” Pl.’s Reply 3 (ECF No. 65).
Port Resources concedes that it has structured the workweek from Sunday to
Saturday for purposes of payroll and overtime calculation. Def.’s Opp’n. 6 (ECF No.
62). The LTS seven-day shift is spread across two workweeks, with 40 hours worked
Thursday to Saturday and 56 hours worked Sunday to Thursday (rather than 96
hours in one workweek, and zero in the next). Pl.’s Mot. 19. By structuring the
workweeks in this fashion, Port Resources is able to reduce overtime hours
significantly. But Port Resources contends that whether an employee spends an
“extended period of time” on its premises does not need to be measured by the payroll
workweek. Port Resources offers three types of arguments against the Plaintiffs’
interpretation of Section 785.23 and the 1988 Memo—arguments based on the
language of the 1988 Memo, caselaw, and standards of deference.
First, Port Resources argues that the reference to “workweek” in the 1988
Memo must be read in context. The 1988 Memo reads:
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 IB 785.23
if the employee resides on the premises for a period of 120 hours in a
workweek.
WH is refining and restating the minimum conditions required to meet
this rule. An employee will be found to reside on the premises for an
extended period of time if:

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(1) the employee is on duty at the group home and is compensated for at
least eight hours in each of five consecutive 24-hour periods; and
(2) The employee sleeps on the premises for all sleep periods between
the beginning and end of this 120-hour period.
1988 Memo at *2.
Port Resources argues that there is nothing in the 1988 Memo, or in any of the
other WHD guidance, that says that a workweek has to correspond with the payroll
workweek. This argument seems to miss the point of the Fair Labor Standards Act.
Employers have to pay overtime for employees who work more than 40 hours in a
“workweek.” 29 U.S.C. § 207(a)(1). The term “workweek” is the FLSA’s principal
standard of measure. It delineates the period in which overtime compensation must
be assessed. Section 778.105 allows employers to decide when they want the
workweek to start, but once the workweek is determined, it is to remain fixed. In this
case, Port Resources decided to measure its overtime compensation from Sunday
through Saturday, and in so doing, it determined its “workweek” for purposes of the
FLSA.
Port Resources also points out that in the 1988 Memo, the WHD only referred
to “120 hours in a workweek” once and did not repeat that iteration in the subsequent
paragraph where it referred only to “this 120-hour period.” But the WHD specifically
defined “workweek” by reference to § 778.105 and then specified that an “extended
period of time” under § 785.23 is “a period of 120 hours in a workweek.” 1988 Memo,
at *2. The fact that the WHD did not repeat the phrase “120-hour period in a
workweek” in the second paragraph, does not, as the Defendant contends, mean that
it did not really mean to say “workweek” in the previous paragraph. The use of the
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word “this” in the phrase “this 120-hour period” clearly refers to the previously
mentioned “period of 120 hours in a workweek.”
Port Resources’ third and final text-based argument is that its employees fall
within the language found in the first sentence “does not otherwise reside on the
premises 7 days a week.” It argues that because LTS “do ‘otherwise reside on the
premises 7 days a week,” there is no need to get into the question of whether they fall
within the category of employees who reside on the employer’s premises for an
“extended period of time.” Def.’s Opp’n 7. This interpretation of the guidance also falls
flat. In the first part of the first sentence of the section quoted above, the WHD was
attempting to differentiate the employees in the “extended period of time” category
from the employees who reside on their employers’ premises permanently or seven
days a week.9 Under this construction, the WHD appears to be using “seven days a
week” to mean every day of every week, as in, “I exercise seven days a week.”10 This
commonly understood meaning would describe those employees who are at the
employer’s premises every day, but it would not extend to those with a shift structure
that gives them seven days on duty and then seven days off.
For the above reasons, I disagree with the Defendant’s text-based arguments
that the WHD’s use of the term “workweek” takes on a different meaning when

Permanent residence is not necessarily completely redundant to residing for seven days a
week. The WHD must consider a multitude of employment scenarios. For example, a camp counselor
who resides “seven days a week” at a camp over the summer does not necessarily “reside permanently”
at the employer’s premises.
9

See also The Beatles, Eight Days a Week (1964) (“Love you ev’ry day girl,/ Always on my mind./
One thing I can say girl,/ Love you all the time. . . . /Ain’t got nothin’ but love babe,/ Eight days a
week”).
10

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determining whether an employee resides on the premises for extended periods of
time.
Second, the Defendant cites multiple cases for the proposition that “an
employee’s shift may straddle two workweeks even if the purpose and result is to
minimize overtime.” Def.’s Opp’n 7 (citations omitted). The very argument contains a
concession that such a shift is extending over two separate “workweeks.” There is no
question that an employer can chose to structure the workweek in such a way as to
minimize overtime. Abshire v. Redland Energy Services, LLC 695 F.3d 792, 795-96
(8th Cir. 2012) (no FLSA violation where employer made a permanent change to the
designation of an employee’s workweek, but not his work schedule, so that fewer
hours qualified as overtime). But that is a different matter from whether an employee
resides on premises for a period of at least 120 hours in a workweek. The 1988 Memo
talked in terms of whether an employee resides on the premises for “at least 120 hours
in the workweek,” not “at least 120 hours in the employee’s work schedule” or “at
least 120 hours in the employee’s shift.”
The Defendant does cite two cases that found that employees in similar group
home settings resided for extended periods on their employers’ premises and fell
within the § 785.23 exemption for sleep-time. See Shannon, 82 F. Supp. 2d at 427 n.2,
431 (no dispute that seven-day shift spread over a two pay periods constituted an
extended period of time); Gay, 102 F. Supp. 2d at 456 (same).11 Like here, in both

Port Resources also cites to Beaston v. Scotland School for Veterans’ Children, in which the
court found that boarding school houseparents’ seven-day shift constituted an extended period of time.
693 F. Supp. 234, 239 (M.D. Pa. 1988) (decided two months after the 1988 Memo was issued). The
houseparents’ total hours worked in that seven-day shift was only 42 hours, accounting for unpaid
11

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Shannon and Gay, the seven-day shift spanned two pay periods to reduce overtime
obligations. While the Shannon and Gay courts did find that § 785.23 applied, neither
case addressed the argument raised here by the Plaintiffs, and the cases therefore
are of little help. With no analysis from any court on either side of the question, the
issue appears to be a matter of first impression.
Finally, the Defendant argues that if the WHD really meant what it said—that
in order to be considered residing for an extended period of time under § 785.23, the
employee must reside at the employer’s premises for at least 120 hours within a
workweek—then I should accord it no deference because it would lead to absurd
results. Port Resources points out that looking at workweeks in isolation would mean
an employee who resided on her employer’s premises for a ten-day shift would meet
the “extended period” in the first workweek but fail to meet it in the second workweek.
The Plaintiffs counter that the WHD avoids this outcome by using the article “a”
rather than “the.” Pl.’s Reply n.3. As long as the shift attaches to “a” workweek within
which 120 hours were worked, the whole shift would be long enough to constitute an
extended period of time. While I am not sure that the WHD intended to put so much
weight on the article that precedes “workweek,” I agree that the absurd results would
be easily avoided by this interpretation.
Although it is a close question, I conclude that § 785.23 does not apply to the
Plaintiffs in this case. The plain meaning of the 1988 Memo is that it will consider an

breaks, and this suggests that the shift covered just one pay period, although the court does not discuss
the matter either way. Id. at 235. I read Beaston to say that a seven-day shift is adequate but without
useful reference to the underlying pay periods.

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employee 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.” 1988 Memo, at *2. The WHD presumably understood what it was
doing when it used the term “workweek” and referred back to 29 C.F.R. § 778.105, its
policy on determining the workweek. The 1988 Memo sets forth the WHD’s
enforcement interpretation, and the Supreme Court has stated that “[g]ood
administration of the [FLSA] and good judicial administration alike require that the
standards of public enforcement and those for determining private rights shall be at
variance only where justified by very good reasons.” Skidmore, 323 U.S. at 140. The
Defendant, who bears the burden of proving that § 785.23 applies, has failed to
provide “very good reasons” for disregarding the guidance. Mindful of my obligation
to narrowly construe exemptions to the FLSA, Marzuq v. Cadete Enterprises, Inc.,
807 F.3d 431, 438 (1st Cir. 2015), I find that the Defendant’s attempt to define
“workweek” one way for purposes of lowering its overtime payroll and another way
for purposes of fitting within the sleep time exemption to overtime requirements
smacks of having one’s cake and eating it too.
D.

Whether Section 785.22 Applies

The Plaintiffs argue that the Defendant cannot meet its burden of establishing
that it fits within the exemption found at § 785.22 for employees who work over 24
hours because it cannot show that the LTS usually enjoyed an uninterrupted night’s
sleep. In its Reply and Opposition to the Plaintiffs’ Motion for Summary Judgment,
the Defendant states: “it is important to emphasize that Port Resources is relying on
785.23, not 785.22, in support of its sleep time policy.” Def.’s Opp’n 2. The Defendant
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bears the burden on establishing sleep time exceptions to the FLSA. See Garofolo,
405 F.3d at 200. Given this affirmative waiver of any reliance on § 785.22,12 I conclude
that the Plaintiffs are entitled to summary judgment on the issue of liability under
the FLSA. The Defendant, having failed to establish that it fits within either of the
sleep time exceptions, must be held to the general rule that sleep time is compensable.
E.

Statute of Limitations

“Ordinary violations of the FLSA are subject to the general 2-year statute of
limitations. To obtain the benefit of the 3-year exception, the [plaintiff] must prove
that the employer’s conduct was willful.” McLaughlin v. Richland Shoe Co., 486 U.S.
128, 135 (1988); 29 U.S.C. § 255(a). A violation is willful where the employer “knew
or showed reckless disregard for the matter of whether its conduct was prohibited by
the statute.” McLaughlin, 486 U.S. at 133. “[A]n employer does not act willfully even
if it acts unreasonably in determining whether it is in compliance with the FLSA.”
Baystate Alt. Staffing, Inc. v. Herman, 163 F.3d 668, 681 (1st Cir. 1998).
In order to find that the two year statute of limitations is applicable, there
would need to be undisputed facts with regard to whether Port Resources’ conduct in
devising and implementing its sleep policy at least recklessly violated the FLSA.
While the sleep policy on its face did not run afoul of the FLSA, the facts as to whether
On the undisputed facts before me, the LTS staff work at least forty-eight hours straight on
the weekends when there is no four-hour break time. Section 785.22 covers employees who are on duty
for 24 hours or more at a time. In order to prevail on summary judgment, the Plaintiffs would have
had to demonstrate that the Defendant could not meet its burden of establishing entitlement to the
§ 785.22 exemption. On the record before me, I would have found that disputed material facts exist as
to whether § 785.22 applies. But here, for reasons unknown to me, the Defendant has affirmatively
conceded that it is not relying on § 785.22 to support its sleep policy.
12

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the policy was implemented in violation of the FLSA are disputed. Accordingly, I
cannot rule out the applicability of the three-year limitations period until further
development of the facts. See, e.g., McGuire v. Hillsborough County, 511 F. Supp. 2d
1211, 1218 (M.D. Fl. 2007) (whether an employer committed a willful violation of
FLSA, thereby extending the statute of limitations to three years is a jury question);
Cacchione v. Erie Technological Products, Inc., 526 F. Supp. 272, 275 (W.D. Pa. 1981)
(whether violation of FLSA was willful is a question of fact).
II.

Maine Law Claims
Count Two alleges a breach of the Maine Payment Wage Law, and Count Three

alleges a breach of the Maine Minimum Wage Law. The Defendant concedes that the
issue of sleep time for employees residing on their employer’s premises has not been
addressed by Maine Court, and it further concedes that Maine looks to analogous
federal law for guidance on undefined terms. Def.’s Mot. 12 (citing Gordon v. Maine
Cent. R.R., 657 A.2d 785, 786 (Me. 1995) (“When, as here, a term is not defined in
either the relevant statutory provisions or in prior decisions of this court, Maine
Courts may look to analogous federal statutes, regulations, and case law for
guidance.”). In view of my rulings under the FLSA, and in light of the Defendant’s
acknowledgment that Maine is likely to follow federal law on the issue, I find that
summary judgment for Giguere is also appropriate on the Giguere’s Maine law
claims.

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CONCLUSION
For the reasons stated above, the Court DENIES the Defendant’s motion for
summary judgment and GRANTS the Plaintiffs’ motion for summary judgment.

SO ORDERED.
/s/ Nancy Torresen
United States Chief District Judge
Dated this 27th day of April, 2018.

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