In a decision on July 13, 2022, Maryland’s highest court held that the federal Portal-to-Portal Act has not been adopted or incorporated into Maryland wage laws or regulations. As a result, “what constitutes ‘work’ under Maryland law is not limited to what is compensable work under the [federal] PPA and FLSA” and Maryland employers may be required to pay their employees additional wages for time spent under a broader state definition of work that is not otherwise compensable at the federal level.

Portal-to-Portal Act

An amendment to the federal Fair Labor Standards Act (FLSA) in 1947, the Portal-to-Portal Act (“PPA”) clarifies and defines an employer’s obligation to pay employees for activities performed before and after an employee's principal activities. Specifically, the PPA provides that an employer is not required to pay employees for pre- and post-shift activities that 1) are preliminary or postliminary to the principal activity or activities the employee is employed to perform, including walking, riding, or traveling to and from work; 2) take place before or after an employee's performance of all their principal activities in the workday; and 3) are not compensable, during the portion of the day when they occur, under any contract, custom, or practice.

Notably, the PPA does not define “work” – that is left to individual states – but it does limit the scope of compensable working time by generally excluding activities engaged in before an employee begins, or after they conclude, their principal work activities, such as time spent traveling to and from the employee’s principal worksite. Such preliminary and postliminary activities excluded by the PPA are not governed by or compensable under the FLSA.

Maryland Law

Under Maryland law, employees are entitled to be compensated for all hours worked. According to state regulations, compensable “hours of work” is defined as “the time during a workweek that the employee is required by the employer to be either on the employer's premises, on duty, or at a prescribed workplace.” With respect to travel, the regulations specifically provide that travel time is compensable if the employee travels during regular work hours, from one worksite to another, or is called out after work hours for emergencies. Until this decision, it was unclear whether the PPA was incorporated into Maryland’s wage laws and thus whether the corresponding regulations were to be applied using the PPA framework.

The Decision

The July 13, 2022 Court of Appeals decision is a consolidated opinion addressing two related cases: Amaya v. DGS Construction, LLC and Rojas v. F.R. General Contractors, Inc. The primary issue before the Maryland Court of Appeals in these cases was whether time spent by the employee plaintiffs waiting for rides at a parking area where their employers directed them to park, and time subsequently spent traveling to and from a construction site where they performed physical labor, both constituted compensable “hours of work” under Maryland law. The workers accessed the construction site from the parking area via buses supplied by the general contractor for the project that took them to and from the construction site. To make this determination, the Court of Appeals considered whether the lower courts had erred in holding that the PPA had been implicitly incorporated into Maryland wage laws and dismissing the workers’ claims.

Ultimately, the Court held that the PPA has not in fact been incorporated into Maryland law and therefore, compensable “hours of work” under Maryland law is not limited to what constitutes “compensable work” under federal law. As a result, the Court reversed and remanded the cases, finding that there were genuine disputes of material fact as to whether the employees were required to report to the parking area, whether the parking area was the employers’ premises or a prescribed workplace, or whether the employees were required to be on duty, and therefore were engaged in compensable hours of work under state law. These issues will now have to be decided by a fact-finder in circuit court.

Employer Takeaways

In light of Amaya, Maryland employers can no longer assume that travel to and from the actual place of performance of the employee’s principal employment activity, as well as other preliminary and postliminary activities related to the employee’s principal activity, is not compensable. Since employees may now be entitled to compensation for any pre- and post-shift activities required by their employer to be on the employer’s premises, on duty, or at a prescribed workplace, employers with employees in Maryland should evaluate and potentially modify their existing reporting requirements and pay practices to ensure that employees are being properly paid for all travel time and other preliminary and postliminary activities constituting “hours of work” in accordance with state law.

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