Let's Do Lunch -- But Do We Get Paid?

“An idealist is one who, on noticing that a rose smells better than a cabbage, concludes that it will also make better soup.”
―H.L. Mencken

A client sought my opinion on the compensability of meal periods during night and week-end shifts under the Fair Labor Standards Act (“FLSA”). The gist of which is the client’s workers were customarily given a one-half hour meal period and otherwise work an 8-hour shift.   During the meal period they were free to leave their duty station and in fact did so. They ordinarily went either to the break room or to the cafeteria. And they were generally not interrupted in any manner during this meal period. But they did have to carry a cell phone and leave a number where they can be reached, or they had to carry a pager. If there was an emergency, they received a call asking them to return to the work station. Calls like this, however, were infrequent. If the workers did not receive a half-hour meal break, they were instructed in the past to submit their time for payment.

LEGAL RULES

The FLSA provides as follows regarding meal periods:

§ 785.19 Meal.

(a) Bona fide meal periods. Bona fide meal periods are not worktime. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating. (Culkin v. Glenn L. Martin, Nebraska Co., 97 F. Supp. 661 (D. Neb. 1951), aff'd 197 F. 2d 981 (C.A. 8, 1952), cert. denied 344 U.S. 888 (1952); Thompson v. Stock & Sons, Inc., 93 F. Supp. 213 (E.D. Mich 1950), aff'd 194 F. 2d 493 (C.A. 6, 1952); Biggs v. Joshua Hendy Corp., 183 F. 2d 515 (C. A. 9, 1950), 187 F. 2d 447 (C.A. 9, 1951); Walling v. Dunbar Transfer & Storage Co., 3 W.H. Cases 284; 7 Labor Cases para. 61.565 (W.D. Tenn. 1943); Lofton v. Seneca Coal and Coke Co., 2 W.H. Cases 669; 6 Labor Cases para. 61,271 (N.D. Okla. 1942); aff'd 136 F. 2d 359 (C.A. 10, 1943); cert. denied 320 U.S. 772 (1943); Mitchell v. Tampa Cigar Co., 36 Labor Cases para. 65, 198, 14 W.H. Cases 38 (S.D. Fla. 1959); Douglass v. Hurwitz Co.,145 F. Supp. 29, 13 W.H. Cases (E.D. Pa. 1956)).

(b) Where no permission to leave premises. It is not necessary that an employee be permitted to leave the premises if he is otherwise completely freed from duties during the meal period.

29 C.F.R. 785.19.

It was my understanding that my client’s employees met the first two prongs of this test unequivocally. Their break is scheduled for a full 30 minutes, and the employee was allowed to leave his or her duty post. They did not have to remain at their duty station – they could go to the rest area or cafeteria or other workplace locales. Even if they were restricted from leaving the employer’s premises, that didn’t matter. There were places in the work site for them to go to. They did not have to remain at their duty station.

Accordingly, the exclusive focus thus was on whether the employee is completely relieved of duties. The workers suggested to my client that because they had to carry cell phones or beepers, and must respond when called back to work, they are not completely relieved of their duties for a meal period. They asserted that the literal application of the FLSA regulations required that they be paid for all their meal periods. However, as a general rule just because workers have to carry a cell phone or a pager, and be on call, subject to an emergency, which may require employees to interrupt their meal period take a phone call and/or report back to work, doesn’t mean that all their time is interrupted, and doesn’t mean they aren’t free to use it for their own purposes. Neither cell phone or beeper policies, nor occasional and sporadic interruptions of some meal periods, are generally enough to turn every meal period into working time.

The particular outcome of any dispute, of course, is subject to its own particularized facts. And it can depend on where the employment relationship is located. There is split in the legal interpretation applied to meal time issues and two different lines of case authority regarding meal and rest periods. The Court of Appeals for the 9th and 11th Circuits have endorsed a stricter view of what constitutes being relieved from all duties. They are more literal in their reading of the completely relieved of duties portion of the regulations. But even in those circuits, simply carrying a phone or pager and being subject to occasional, but infrequent interruption, is not enough to make every meal or rest period into compensable working time. And the so-called majority rule, as adopted by a wide range of federal circuit courts, including 2nd, 3rd, 4th, 5th, 7th and 8th, is a “predominant benefit” test. See, e.g., Roy v. County of Lexington, 141 F.3rd 533 (4th Cir. 1998). Courts in these circuits generally ask if the employee is primarily engaged in work-related duties during meal periods. If yes, then it is compensable. If not, it is likely non-compensable, assuming it satisfies the other prongs of the test, like being of at least one-half hour duration.

In my client’s state, which is part of the 3rd Circuit, the courts have adopted the predominant benefit test, albeit by a 2-1 split decision. See Babcock v. Butler County, Case no. 14-1467 (3rd Cir. 2015). This controlling legal authority thus bolsters the practice of not paying for every meal period just because the employee must carry a cell phone or beeper and be available in the event of an emergency.

CONCLUSION

Based on the above, it was my opinion that the meal time one-half hour meal period given the employees was not compensable working time. It could be properly excluded from hours worked. The meal period appeared to be predominantly for the benefit of the employees. There were no unreasonable restrictions placed on the employees by the employer. 

It was my recommendation, notwithstanding the above advice, that employer pay the workers extra monies on the occasional and sporadic work shifts when their meals are interrupted. This may not be required by law, but it is a good employment practice, and reinforces that the other meals were not interrupted in any manner. And it is wiser to pay for that small amount of time than to have a dispute over it.

I also recommended better communications with the workers as to the company’s meal period policies.