Unpaid Meal Time Not Covered by FLSA, 3rd Cir. Affirms

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By Kevin McGowan

Nov. 24 — Corrections officers at a Pennsylvania county prison who weren't paid for 15 minutes of an hourlong meal period lack Fair Labor Standards Act overtime claims because the unpaid period wasn't compensable under the act, a divided U.S. Court of Appeals for the Third Circuit ruled Nov. 24.

On a matter of first impression for the circuit, the court aligned itself with the majority of federal appeals courts by adopting a “predominant benefit” test for determining if meal time must be paid under the FLSA. That test asks if the officer is primarily engaged in work-related duties during meal periods. The court ruled that since the meal period was primarily for the employees' benefit, the 15 minutes they weren't paid weren't compensable.

The decision deepens a circuit split, as the Ninth and Eleventh circuits have said the proper FLSA test is whether the employee has “been relieved of all duties” during meal breaks.

But the Third Circuit said even those courts didn't actually apply the “relieved from all duties test” in the cases before them. In any event, Butler County and the corrections officers in this case agreed the “predominant benefit” should apply, the court said. But they disagreed on whether corrections officers raised a plausible FLSA claim under that standard that the unpaid meal period was compensable.

Court Follows Majority View 

The decision is significant because the Third Circuit joins the Second, Fourth, Fifth, Seventh and Eighth circuits in adopting the predominant benefit test for determining if employee time is compensable, said Michael Lettrich, a Pittsburgh attorney who represented Butler County in the case.

The court also appropriately considered the collective bargaining agreement covering the employees, which it decided was consistent with the FLSA, Lettrich told Bloomberg BNA Nov. 24. The court can't enforce a union contract that violates the FLSA but “it's pretty clear” in this case that the pay arrangement reached by the union and county tracks the FLSA's principles, Lettrich said.

Under the union agreement, the corrections officers were paid for 45 minutes of the meal period. They were only paid for the final 15 minutes if they had to respond to a prison emergency; they were not paid if the final 15 minutes were uninterrupted employee time, Lettrich said.

The Third Circuit's decision applies to compensable work generally but will have the most resonance for corrections officers, other employees working in secure facilities, police officers and other public safety employees, said Lettrich, who is with the firm of JonesPassodelis.

The attorney representing the corrections officers wasn't available for comment Nov. 24.

Case Prematurely Halted, Dissent Says 

The Butler County corrections officers before the Third Circuit argued that under either the predominant benefit standard or the more employee-friendly “relieved of all duties” standard, they should be paid for the entire meal period.

They couldn't leave the prison without the warden's special permission during meal periods, had to keep emergency equipment within reach and had to respond immediately to emergency calls during such periods, the corrections officers said. Under such circumstances, the meal periods weren't really the employees' own free time, they said.

In dissent, Judge Joseph A. Greenaway said he would revive the officers' FLSA overtime claims because under the predominant benefit test as correctly applied, the restrictions placed on the officers' meal periods arguably make it compensable time.

The majority erred by focusing on the “red herring” of the officers' collective bargaining agreement in which their union agreed to the 45-minute paid period compromise, the dissent said. A union contract's terms should have no bearing on the FLSA issue of whether the entire meal period is compensable time, Greenaway wrote.

“Where employees have faced significant restrictions for the benefit of their employer, meal periods have been considered compensable work under the FLSA,” the dissent said.

The district court—and Third Circuit majority—erred by dismissing the plaintiffs' case at the pleading stage, depriving them of the opportunity to develop the facts to support their FLSA claims under the predominant benefit test, Greenaway wrote.

At least, if the plaintiffs' complaint was deemed deficient, the district court should have granted them leave to amend the complaint, the dissent said.

Employees Fail Applicable Test 

Writing for the majority, Judge Dolores K. Sloviter said the FLSA is silent on whether meal periods are compensable work and courts haven't taken literally a Department of Labor regulation that suggests employees must be completely free of work obligations during an unpaid meal period.

The predominant benefit is necessarily a “fact-intensive” analysis that considers the “totality of the circumstances” in deciding if the time at issue is primarily for the employer's or employee's benefit, the court said.

Nevertheless, the district court correctly found the restrictions placed on the corrections officers during their meal periods didn't primarily benefit the employer, the Third Circuit said.

When compared with other cases addressing the compensability of meal periods in law enforcement contexts, the restrictions on the correction officers “do not suffice” to make their unpaid time compensable, the court said. “For example, the corrections officers here could request authorization to leave the prison for their meal period and could eat lunch away from their desks,” Sloviter wrote.

In contrast, the police officers found covered by the FLSA in Alexander v. City of Chicago, 994 F.2d 333, 1 WH Cases2d 657 (7th Cir. 1993) had to receive permission to take a meal break and were prohibited from reading “nondepartmental publications” during such breaks, the court said.

Union Contract Provides Protection 

The collective bargaining agreement in this case also is relevant, the court said, citing Leahy v. City of Chicago, 96 F.3d 228, 3 WH Cases2d 801 (7th Cir. 1996).

In Leahy, the court reasoned the union contract sufficiently protected the police officers' FLSA rights by guaranteeing overtime pay for periods worked beyond the statutory maximum hours.

Although the union contract in this case is “silent on the compensablity” of the 15-minute meal period, it provides corrections officers with the benefit of a partly compensated mealtime and mandatory overtime pay if their mealtime is interrupted by work, the court said.

As the Seventh Circuit said in Leahy, “[t]he FLSA requires no more,” the court said. As in Leahy, the union contract “assumes that generally an officer is not working during a meal period, but provides for appropriate compensation when an officer actually does work during the meal,” the court said.

If the corrections officers are dissatisfied with the current meal period pay arrangement, they can seek a different deal during the next round of collective bargaining, the court said.

Judge Julio M. Fuentes joined in the majority opinion.

Justin Swidler of Swartz Swidler in Cherry Hill, N.J., represented the corrections officers. Marie M. Jones of JonesPassodelis in Pittsburgh also represented Butler County.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/SANDRA_J_BABCOCK_JAMES_T_KENAAN_Jr_BRADLEY_J_SARVEY_DALE_R_LIPAN_.