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Unpaid travel time is wage theft and harms people of color, women, and immigrants, argue amicus briefs to Court of Appeals

November 19, 2021

If your employer forced you to wait for up to two hours to ride a bus to and from a parking lot, but didn’t pay you for your travel time, wouldn’t you feel like your wages had been stolen? That is the question before the Maryland Court of Appeals in two cases, Amaya, et al. v. DGS Construction, LLC, et al. and Rojas, et al. v. F.R. General Contractors, Inc., et al. During construction of the MGM National Harbor resort and casino, the general contractor and subcontractors required their workers (many of whom are Latine) to ride a bus from a parking lot to a worksite 2.3 miles away and did not allow employees to park at the worksite. These employees were never paid for their travel time.

At issue in these cases is the application of the federal Portal-to-Portal Act (PPA) to state wage claims since Maryland’s General Assembly did not adopt it. Under both the Fair Labor Standards Act (FLSA) and Maryland wage laws, employees must be compensated for all hours worked. The PPA allows employers a narrow exception to the FLSA requirements that workers be paid for certain work time before and after their principal work shift each day – in these cases, the lengthy required waiting and travel time between where the employers made workers park and the construction site at which they worked.

The workers sued under the Maryland Wage and Hour Law and the Maryland Wage Payment and Collection Law. But the circuit court found that these Maryland laws should follow the FLSA as amended by the PPA. The Public Justice Center and the Metropolitan Washington Employment Lawyers’ Association (MWELA) have challenged this argument over the past three years as the cases moved through the Court of Special Appeals and now the Maryland Court of Appeals, filing a in support of the workers. The briefs argued that the courts should not apply the federal PPA to state wage claims since the Maryland General Assembly did not adopt it. Our briefs show how engrafting the PPA onto Maryland wage laws would cheat Maryland workers out of significant wages and would sanction this pervasive form of wage theft (unpaid travel time) that disproportionately burdens people of color, women, and immigrants.

Three Murnaghan Appellate Advocacy Fellows have spearheaded the PJC’s involvement in the cases. 2019-20 Murnaghan Fellow Dena Robinson authored a brief in the Maryland Court of Special Appeals in August 2020. After the Court of Special Appeals sided with the employers, 2020-21 Murnaghan Fellow Olivia Sedwick wrote a brief this April in support of the workers’ appeal to the Maryland Court of Appeals, followed by a September brief from 2021-22 Murnaghan Fellow Michael Abrams after the Court of Appeals agreed to hear the cases. The most recent brief is available here.

The briefs address the pervasiveness of wage theft, the prevalence of wage theft in low-wage industries, the impact on the communities that wage theft harms the most (women, Black people, Latine people, and immigrants, particularly those who are undocumented), and the impact of wage theft on communities and local economies. The briefs explained how wage theft keeps working families in poverty, exploiting people who are already subject to discrimination and exploitation at work. The briefs illuminate how companies often utilize wage theft – knowing exactly what they are doing by shortchanging employees – as a business model to cut their costs and gain unfair advantage over law-abiding competitors. The briefs also showed how the lower courts’ reading of the law would exacerbate the harm wage theft causes low-wage workers in Maryland. We hope that these briefs will help preserve Maryland laws that enable workers to hold employers accountable for wage theft.