DAVID GIGUERE, on his own behalf and on behalf of all others similarly situated, Plaintiff, Appellee/Cross-Appellant,
PORT RESOURCES INC., Defendant, Appellant/Cross-Appellee. KELLON ALEXIS; SYLVIA OUELLETTE; LINDA PERRY; LEE SOUTHWICK; KIMBERLY FARRELL; MARY FEELEY; LINDSAY GAGNE; JERRY GARCIA; CRYSTAL JACKMAN; RYAN JARRELL; RENEE JORDAN; CHRISTINE POORE; BRIE GAIA REED; NEVERLY RUDA; ZU-CHYUN SPEAKER; RENOVAT BARAGENGANA; ROBERT BISSELL; THERESA BISSELL; LONG CAO; DARREN CHEVRIER; KENNETH COLE; CYNTHIA COOKINGHAM; SUSAN DESJARDINS; JOHN FARRELL; ROBERT BROGDEN; DEBRA DOW; PAIGE HARRIS; SUSAN MACDONALD; ERIC NKURUNZIZA; EULADE NKURUNZIZA, Plaintiffs,
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MAINE HON. NANCY TORRESEN, U.S. DISTRICT JUDGE
Timothy H. Norton, with whom Graydon G. Stevens and Kelly,
Remmel & Zimmerman were on brief, for Port Resources,
Mancuso, with whom Andrew Schmidt and Andrew Schmidt Law PLLC
were on brief, for David Giguere.
Lynch, Kayatta, and Barron, Circuit Judges.
Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et
seq., sets federal minimum-wage, maximum-hour, and
overtime guarantees. When an employer fails to meet these
requirements, the FLSA gives employees a private right of
action to recover their due. Id. § 216(b).
cross-appeals come from an action, brought as an FLSA
collective action and as an individual action under analogous
Maine labor laws, to recover what are alleged to be unpaid
overtime wages. The employer, defendant Port Resources,
disputes that such wages are owed. Under its sleep-time
policy, Port Resources did not pay employees like plaintiff
David Giguere for eight hours each night, even though the
employees were on duty during that time.
district court found that this policy was unlawful,
Giguere v. Port Res., Inc.
(Giguere I), No. 16-CV-58-NT, 2018 WL 1997754, at
*10 (D. Me. Apr. 27, 2018), and so awarded back wages to the
collective-action plaintiffs and treble damages to Giguere,
Giguere v. Port Res., Inc.
(Giguere II), No. 16-CV-58-NT, 2018 WL 5268600, at
*5 (D. Me. Oct. 23, 2018).
no error in the district court's carefully reasoned
opinions, we affirm.
Resources is a nonprofit organization that runs group homes
(which it calls "programs") that provide housing
and services to adults with developmental disabilities and
behavioral health challenges. It uses a long-term-staff model
to care for program clients. Its long-term staff provide
daily living skills development, administer medication, and
assist with personal care and community integration. And,
true to that name, long-term staff work long shifts -- seven
days on and seven days off, from Thursday to Thursday. One
set of long-term staff alternates with another assigned to
the same residence. Twenty Port Resources programs have this
setup, and eleven of those twenty also have "overnight
awake staff" responsible for attending to clients during
the night, as necessary.
long-term staff's weeklong shift includes four four-hour
unpaid breaks and eight hours of nightly unpaid sleep time.
This sleep-time arrangement is governed by a written
"Sleep Time Agreement," which provides in full:
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) [hour] shifts.
Under wage and hour guidelines, 29 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 uninterrupted night's
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.
remains contested how often long-term staff must attend to
the program clients during scheduled sleep time.
Resources has chosen to compute its payroll workweek from
Sunday to Sunday, so each long-term-staff shift spans two
payroll workweeks. This means that Port Resources pays
long-term staff for forty hours of work during their first
payroll workweek (Thursday to Saturday) and for fifty-six
hours of work during their second (Sunday to Thursday). Port