An employer can require an hourly non-exempt employee to take an unpaid meal period during their commuting time, provided certain conditions are met, according to the 5th U.S. Court of Appeals. The meal period is not considered to be working time or compensable travel time if the employee is both relieved of duty during this period and the time is otherwise considered a good meal period. faith under the Fair Labor Standards Act (FLSA).
In this case, the employer, a subcontractor to US Immigration and Customs Enforcement (ICE), hired security officers to accompany and take care of those deported on flights transporting them to another country. The responsibilities of the security guards ranged from monitoring the deportees to coordinating their movements to the toilets. The security guards were non-exempt hourly employees for FLSA purposes.
The employer had a meal period policy for the return portion of the flight. The policy required security guards to take an unpaid meal hour on any return flight exceeding 90 minutes and without anyone being deported on board. During meal times, security guards had to completely disengage from their duties and were allowed to use the time as they wished.
Security guards filed a lawsuit, seeking class certification and claiming that the contractor’s meal period policy violated the FLSA by not paying minimum wage for the meal period and not paying the overtime required. The security guards argued that the meal times were compensable and did not constitute bona fide meal times.
The trial court granted conditional class certification, then denied the minimum wage claim. The employer then requested summary judgment on the overtime wage claim. The trial court ruled in favor of the employer, finding that the security guards had not rebutted the employer’s affirmative assertion that the officers had been relieved of their work duties during meal times and that there had been no interruptions during their meal breaks.
Circuit 5 claimed that it was permissible to require an unpaid meal period during otherwise compensable travel time. The court singled out previous case law requiring employers to compensate employees for travel time, even when employees were engaged in downtime or allowed to sleep or engage in personal activities. The court concluded that travel time regulations and case law do not prohibit an employer from requiring unpaid meal time on airplane flights.
The appeals court also ruled that the meal break policy was allowed because the facts met the “predominant benefit test” previously adopted by the 5th Circuit, which found that the meal break was primarily for the benefit of the employee and not the employer. The tribunal held that the meal times policy must be viewed in the context of the relevant workplace. In this case, security guards did not identify any work-related tasks that interfered with bona fide meal times, and each employee could therefore use the time effectively for their own purposes. The tribunal therefore concluded that the meal period policy was admissible in this particular context.
Dean c. Akal Security Corp., 5th Cir., N ° 20-30306 (June 22, 2021).
Professional pointer: Employers should be careful about whether the employee is fully off duty when determining whether unpaid meal times are permitted during travel time. If an employer requires an employee to devote time to an activity or to remain responsible for more than minimum work-related tasks, the employer will find it difficult to avoid paying the employee for that time. Employers should also consider these scenarios in the context of any meals or breaks required by the state.
Marc Alifanz and John Stellwagen are attorneys at Bullard Law, the Worklaw® network member firm in Portland, Oregon.