          United States Court of Appeals
                      For the First Circuit


Nos. 18-2073
     18-2163

  DAVID GIGUERE, on his own behalf and on behalf of all others
                       similarly situated,

               Plaintiff, Appellee/Cross-Appellant,

   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,

                                v.

                       PORT RESOURCES INC.,

               Defendant, Appellant/Cross-Appellee.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

           [Hon. Nancy Torresen, U.S. District Judge]


                              Before

                   Lynch, Kayatta, and Barron,
                         Circuit Judges.


     Timothy H. Norton, with whom Graydon G. Stevens and Kelly,
Remmel & Zimmerman were on brief, for Port Resources, Inc.
     Peter Mancuso, with whom Andrew Schmidt and Andrew Schmidt
Law PLLC were on brief, for David Giguere.


                         June 19, 2019
            LYNCH, Circuit Judge.             The 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).

            These 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.

            The 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).

            Finding     no   error    in   the   district   court's   carefully

reasoned opinions, we affirm.




                                      - 3 -
                                I.

                                A.

          Port 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.

          A 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 785.221 and 785.23, where an employee

     1    Though Port Resources cites section 785.22, in this
litigation it has "affirmatively conceded that it is not relying


                               - 4 -
          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 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
          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.

It remains contested how often long-term staff must attend to the

program clients during scheduled sleep time.

          Port   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




on [section] 785.22 to support its sleep policy."       Giguere I, 2018
WL 1997754, at *9 n.12.


                                   - 5 -
during their second (Sunday to Thursday).          Port Resources does not

pay its long-term staff for their fifty-six hours of sleep time

(Thursday to Thursday).

                                      B.

           David Giguere, a former Port Resources employee, sued

Port Resources, alleging that its sleep-time policy violated the

FLSA; the Maine Wages and Medium of Payment Act (the Wages Act),

Me. Stat. tit. 26, §§ 621-A, 626-A, 629; and the Maine Minimum

Wage Law, id. §§ 663, 664, 670.2

           The    district   court    conditionally     granted    collective

action status for the FLSA claim, and thirty individual employees

besides Giguere opted in.       Giguere brought his Maine claims only

on his own behalf.3

           Both   parties    moved    for    summary   judgment,   which   the

district court granted to Giguere and the other collective-action

plaintiffs on the FLSA claim and to Giguere on his two Maine law

counts.4   Giguere I, 2018 WL 1997754, at *10.           The district court



     2    Giguere also brought, but then voluntarily withdrew, a
claim for alleged breach of contract and unjust enrichment.
     3    To be more precise, Giguere at first sought class action
status for his Maine law counts, but later voluntarily abandoned
that request.
     4    The district court then held a bench trial to determine
whether Port Resources could establish a good-faith defense to
liquidated damages under the FLSA. The district court found that
Port Resources had acted in good faith and the parties stipulated
to the back wages owed each plaintiff.


                                     - 6 -
then awarded Giguere treble damages under the Wages Act.      Giguere

II, 2018 WL 5268600, at *5.

             Both parties appealed.

                                  II.

             We review the district court's summary judgment rulings

de novo.     Jakobiec v. Merrill Lynch Life Ins. Co., 711 F.3d 217,

223 (1st Cir. 2013).     And because the parties filed cross-motions

for summary judgment, we "view each motion separately, drawing all

inferences in favor of the nonmoving party."       Fadili v. Deutsche

Bank Nat. Tr. Co., 772 F.3d 951, 953 (1st Cir. 2014).

                                  A.

             Port Resources argues that the district court erred in

concluding that it had violated the FLSA by not compensating its

long-term staff for their sleep time.       We find no such error, so

we affirm.

             We begin with background.   The FLSA's usual rule is that

an employer must pay an employee for all time the employee is

required to spend at a worksite, even sleep time.       See 29 C.F.R.

§ 785.7 ("The workweek ordinarily includes 'all the time during

which an employee is necessarily required to be on the employer's

premises, on duty or at a prescribed work place.'"           (quoting

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690-91 (1946))).

But the Department of Labor's (DOL) regulations also provide that




                                 - 7 -
if "certain conditions" are met, an employer may carve worksite

sleep time out of an employee's hours worked.           Id. § 785.20.5

             Port Resources relies on one such sleep-time regulation:

29 C.F.R. § 785.23, which covers "live-in" employees.             If such an

employee "resides on his employer's premises on a permanent basis

or for extended periods of time," he and the employer may enter

into "any reasonable agreement" about payment for sleep time.              Id.

             No one claims this regulation is unambiguous.          Aware of

confusion about the regulation, DOL interpreted the term "extended

periods of time" in a 1988 enforcement memorandum. That memorandum

stated   that      an   employee   meets    the   extended-periods-of-time

standard when, as relevant here, he "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, (June 30, 1988), 1988

WL 614199, at *2          (emphasis added).       The memorandum defined

"workweek"    as    "seven   consecutive    24-hour   periods,"   citing    29

C.F.R. § 778.105, id., which provides that an employee's workweek

"need not coincide with the calendar week," but once the employer

has established when the workweek begins, the workweek's span



     5    Section 785.20 states:     "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." Though this
might be read to imply that sleep time is generally not counted as
hours worked, context shows the opposite. In immediately following
sections, DOL carefully delineates when an employer may exclude
worksite sleep time from an employee's hours worked.


                                    - 8 -
"remains fixed regardless of the schedule of hours worked by [the

employee]," 29 C.F.R. § 778.105.

            Port Resources concedes that it "established" a Sunday-

to-Sunday workweek for payroll purposes.            And it makes no attempt

to show that its long-term staff reside on its premises for 120

hours within that payroll workweek.

            Port Resources instead argues that DOL did not in its

memorandum intend to make the workweek the baseline for determining

whether    an   employee   resided    on     the   employer's   premises   for

"extended periods of time."          This argument turns on the text of

DOL's 1988 memorandum, so we quote that memorandum's key language

in full:

            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, [DOL's Wage and Hour
            Division (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
            [section] 785.23 if the employee resides on
            the premises for a period of at least 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 extended periods 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


                                     - 9 -
                beginning    and    end     of   this    120-hour
                period.

1988 WL 614199, at *2.      Port Resources argues that after laying

out its 120-hours-in-a-workweek standard, DOL then "refin[ed] and

restat[ed] the minimum conditions required to meet this rule"

without any mention of the term "workweek."             Port Resources then

attempts   to   bolster     this    argument     with    opinion    letters,

interpretations, and bulletins spanning the three decades since

DOL's 1988 memorandum.

           While the question is not free from doubt (and further

clarification from DOL may be warranted6), we think Giguere has

the better reading of DOL's memorandum.            First, nothing in the

language Port Resources relies on repudiates the DOL's statement

that the extended-periods-of-time standard requires "reside[nce]

on the [employer's] premises for a period of at least 120 hours in

a workweek."     The language Port Resources relies on follows

directly after that statement.         So Port Resources' argument is

that DOL announced a workweek-based rule in one breath and then

disclaimed it in the next.         The better reading of the language




     6    We note that neither party sought guidance from DOL on
this issue. See 29 C.F.R. § 785.1 (noting that "[i]f doubt arises"
in "determining what constitutes working time" under DOL's
regulations, the party in doubt should send "inquiries" to DOL).
And neither party has asked that we seek guidance from DOL. So,
preferring not to further delay resolution of this case, we will
proceed without seeking such clarification.


                                   - 10 -
Port Resources relies on is that it is what it says it is: a

refinement of "this rule" -- that is, DOL's workweek-based rule.

            Second, the 1988 memorandum has not been superseded.           It

remains the most comprehensive of DOL's analyses of section 785.23.

And DOL's later documents do not deviate from its analysis; rather,

they continue to reference the 1988 memorandum.               DOL has, as

recently as 2014, referred to the 1988 memorandum in interpreting

section 785.23.       See U.S. Dep't of Labor, Wage & Hour Div.,

Administrator's Interpretation No. 2014-1 (Mar. 27, 2014), 2014 WL

1276986 at *12 n.22.

            And   third,   Port   Resources'    argument   requires   us   to

assume that DOL did not "consciously" establish the workweek

standard. But DOL not only used the term "workweek," it also noted

that "workweek" and several terms like it "ha[d] caused some

difficulty."      1988 WL 614199, at *2.       It then listed those terms

and "defined [them] for further guidance." Id. And its definition

of "workweek" referred to an already promulgated regulation: 29

C.F.R. § 778.105.      This careful attention belies Port Resources'

argument.

            We conclude that the better reading of DOL's memorandum

is that the agency analyzes section 785.23 with reference to an

employer's workweek.       The question then becomes one of deference.

The parties dispute whether the rubric of Auer v. Robbins, 519

U.S. 452 (1997), or Skidmore v. Swift & Co., 323 U.S. 134 (1944),


                                   - 11 -
applies.    We need not address this issue because, even were we to

agree with Port Resources that Skidmore, not Auer, applies, we see

no reason to depart from DOL's understanding of its own regulation.

Cf. Fawcett v. Citizens Bank, N.A., 919 F.3d 133, 138 (1st Cir.

2019).     DOL set forth its interpretation of section 785.23 in an

enforcement memorandum.      And as the Supreme Court has cautioned,

"[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.      Port Resources points to no such "very good

reasons" here.

            Port Resources argues that a fixed workweek standard

goes against the principle that an employee's work schedule need

not coincide with his payroll workweek.            But that principle does

not carry the day.    The question is not whether Port Resources can

structure its employees' shifts to, for instance, minimize its

overtime obligations, but whether those employees reside on Port

Resources' premises for "extended periods of time."           And under the

most likely reading of DOL's interpretation, the employees do not.

            Port Resources' remaining argument is that implementing

a workweek standard is arbitrary.         We think not.     The workweek is

the "basic unit" of the FLSA.       O'Brien v. Town of Agawam, 350 F.3d

279, 298 (1st Cir. 2003); see 29 U.S.C. § 207(a)(1); cf. 29 C.F.R.


                                  - 12 -
§ 776.4(a) ("The workweek is to be taken as the standard in

determining the applicability of the Act.").                There is nothing

arbitrary    about       using   the   FLSA's    "basic   unit"   of    time    in

interpreting the phrase "extended periods of time."

             Measuring "extended periods of time" with reference to

the workweek "established" under section 778.105 also makes sense

within DOL's regulatory scheme.             The agency has instructed that

the FLSA "takes a single workweek as its standard."                    29 C.F.R.

§ 778.104.        From this we conclude that the workweek the employer

has chosen is the workweek the employer has chosen.7

             We    are   also    mindful   of   the   interpretive     rule    that

ambiguities in the exceptions to the FLSA's general rules should

be resolved in favor of employees.              See Cash v. Cycle Craft Co.,

508 F.3d 680, 683 (1st Cir. 2007) (noting that the FLSA's remedial

nature "'requires that [its] exemptions be narrowly construed

against the employers seeking to assert them' and 'limited to those

establishments plainly and unmistakably within [the exemptions']

terms and spirit.'"         (alterations in original) (quoting Reich v.

John Alden Life Ins. Co., 126 F.3d 1, 7 (1st Cir. 1997))); cf.



     7    Port Resources can set the start of its workweek to
minimize its overtime obligations. See Abshire v. Redland Energy
Servs., LLC, 695 F.3d 792, 795-96 (8th Cir. 2012); Johnson v.
Heckmann Water Res. (CVR), Inc., 758 F.3d 627, 633 (5th Cir. 2014).
And it can set the start of its week to minimize its sleep-time-
payment obligations. But, having made its choice, Port Resources
cannot now complain that it is unfair to hold it to it.


                                       - 13 -
O'Connor v. Oakhurst Dairy, 851 F.3d 69, 79 (1st Cir. 2017) (noting

a parallel "default rule of construction under Maine law").                     The

FLSA was designed to protect workers "from 'the evil of overwork

as well as underpay.'"       Barrentine v. Arkansas-Best Freight Sys.,

Inc., 450 U.S. 728, 739 (1981) (internal quotation marks omitted)

(quoting Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 578

(1942)).     Section    785.23        advances   that    purpose    by    carefully

distinguishing between "live-in" employees, who are essentially at

home on the employer's premises, and nonresidential employees, who

are not.    And DOL's interpretation of that regulation, as we have

construed    it,    provides      a    useful    frame   of    reference --      the

workweek -- to analyze that distinction.

            Applying    that      interpretation,        we     hold     that   Port

Resources has not carried the burden necessary to invoke section

785.23.     We     affirm   the       district   court's      finding    that   Port

Resources' sleep-time policy violated the FLSA.

                                          B.

            The remaining issues arise under Maine law and relate

only to the district court's damages award, not its liability

determination.8      The district court held that Port Resources had



     8    The district court found that "Maine [wa]s likely to
follow federal law" on sleep time. Giguere I, 2018 WL 1997754, at
*10; see TerMorshuizen v. Spurwink Servs., Inc., Cum-18-288, 2019
WL 2181252, at *3 (Me. May 21, 2019). So, because it had granted
summary judgment to Giguere on his FLSA claim, the district court
"f[ound] that summary judgment for Giguere [wa]s also appropriate


                                        - 14 -
violated both the Wages Act and the Minimum Wage Law.         Giguere I,

2018 WL 1997754, at *10.     It awarded Giguere treble damages under

the Wages Act but did not also award him double damages under the

Minimum Wage law, concluding that Maine's rule against double

recovery precluded the second, smaller damage award.         Giguere II,

2018 WL 5268600, at *4.

          Both   parties    argue   that   the   district   court   erred:

Giguere argues that he has a right to recover under both the Wages

Act and the Minimum Wage law.       And Port Resources argues that he

is only entitled to recovery under the Minimum Wage Law. We reject

both arguments in turn.

          Maine law provides that a plaintiff may not receive two

damages awards for the same loss.          Theriault v. Swan, 558 A.2d

369, 372 (Me. 1989).       A potential exception to this no-double-

recovery rule arises when the two damages awards serve different

purposes; that is, when one is remedial and the other is punitive.

See, e.g., St. Luke's Cataract & Laser Inst., P.A. v. Sanderson,

573 F.3d 1186, 1204 (11th Cir. 2009).       Both parties agree that the



on [his] Maine law claims." Giguere I, 2018 WL 1997754, at *10.
Port Resources says that if we reverse the district court's FLSA
judgment we should overturn its conclusion that Port Resources
also violated Maine law.   Giguere, in turn, argues that we can
affirm the district court's judgment that Port Resources violated
Maine law even if we reverse its judgment that Port Resources
violated the FLSA. Since we have affirmed the district court's
FLSA determination, we affirm on the Maine law count without
addressing either party's argument.


                                - 15 -
damages for Port Resources' violations of the Minimum Wage Law are

remedial, so the question on appeal is whether the penalties for

violating    the   Wages   Act   are   punitive,   so   as   to   require   two

payments.

            The Maine Supreme Judicial Court has strongly suggested

that the Wages Act's purpose is remedial.          See Bisbing v. Me. Med.

Ctr., 820 A.2d 582, 584-85 (Me. 2003) (awarding the plaintiff

appellate attorneys' fees under the Wages Act, as the Court had

done "under other remedial statutes," id. at 585, and referencing

the statute's "broadly protective purpose," id. at 584).                Maine

Wages Act violations entitle a plaintiff to unpaid wages plus "an

additional amount equal to twice the amount of unpaid wages as

liquidated damages."       Me. Stat. tit. 26, § 626-A; see Cooper v.

Springfield Terminal Ry. Co., 635 A.2d 952, 955 (Me. 1993).                 In

Maine, such statutory treble damages provisions are generally

considered remedial rather than punitive in nature.                 Andrew M.

Horton & Peggy L. McGehee, Maine Civil Remedies 77 & n.132 (4th

ed. 2004) (citing Michaud v. City of Bangor, 203 A.2d 687 (Me.

1964)).     So we conclude, as did the district court, that Maine

courts would likely view any damages for Port Resources' Wages Act

violation to be remedial.        And because both of Giguere's available

damages awards had a remedial purpose, the district court properly

awarded him only one.




                                    - 16 -
          Port Resources argues that the district court picked the

wrong one.    It argues that the district court should not have

awarded Giguere treble damages under the Wages Act because nearly

all Giguere's unpaid sleep hours were overtime.   The Minimum Wage

Law grants the right to overtime pay, so Port Resources argues

that double damages under that law was the proper remedy.

          This argument rests on the canon against superfluity.

Most Minimum Wage Law violations, Port Resources argues, will also

violate the Wages Act.    And because the Wages Act provides the

greater remedy -- treble damages -- plaintiffs will always choose

that award.   So to avoid making the Minimum Wage Law's double-

damages remedy superfluous, we should not allow recovery under the

Wages Act for overtime violations.

          There are at least two problems with this argument.

First, Giguere is entitled to recovery under the Wages Act.   So to

hold that he cannot recover his due, we would have to create an

exception to recovery under that Act.   But the Wages Act provides

that any employer who violates its provisions "is liable."     Me.

Stat. tit. 26, § 626-A.   It does not say "is liable unless the

unpaid wages are for overtime."   We see no reason to depart from

the Wages Act's unambiguous language. See Gould v. A-1 Auto, Inc.,

945 A.2d 1225, 1229 (Me. 2008).

          And second, the argument fails on its own terms.    Under

the Wages Act, an employer cannot require, or even permit, an


                             - 17 -
employee "to work without monetary compensation."         Me. Stat. tit.

26, § 629(1).   The Minimum Wage Law, by contrast, provides that

"[a]n employer may not require an employee to work more than 40

hours in any one week unless [1.5] times the regular hourly rate

is paid for all hours actually worked in excess of 40 hours in

that week." Id. § 664(3). The two laws target different concerns:

The Wages Act provides a remedy for unpaid work, while the Minimum

Wage Law provides a remedy for underpaid work.          And because this

is the case, Port Resources' superfluity argument is meritless.

          The   district   court   properly   awarded    Giguere   treble

damages as a remedy for Port Resources' Wages Act violation.

                                   III.

          We affirm.   Costs are awarded to Giguere.




                               - 18 -
