The Fair Labor Standards Act requires that an employee be compensated for all time that he suffers or is permitted to work. The question frequently arises as to when an employee is required to be compensated for times when he is not actually working – i.e., meals/breaks – if there is a restriction placed upon his activities during those times. This question arguably is addressed by the Department of Labor’s regulations which require that the employee be compensated for such periods unless he is completely relieved from all duties.

Thus, is an employee entitled to compensation for the time during which he is not actively performing work but (1) may not leave his employer’s premises, (2) must remain in uniform in close proximity to his equipment and/or work area, (3) be on call and prepared to perform his duties, and (4) cannot sleep, smoke or run personal errands?

The majority of federal appellate courts which have addressed these issues, including those courts covering Pennsylvania, Ohio, West Virginia, Kentucky, Colorado, and Texas, have refused to adopt a literal interpretation of the Department of Labor’s regulations.  Rather, they have applied a “totality of the circumstances” test to determine on a case-by-case basis who receives the predominant benefit of the meal/break period.  This “predominant benefit” test is a fact-intensive inquiry.  Consideration is given to a number of factors, including, but not limited to the following: (1) whether an employee is free to leave his work area and/or the employer’s premises; (2) the number and duration of interruptions to which the employee is subjected; (3) what, if any, restrictions are imposed on the activities of an employee who is required to stay on the employer’s premises; and (4) whether the terms of a collective bargaining agreement applies to the situation.

Courts use these and other factors to answer the question of whether the benefit of the meal/break period inures to the employee’s or the employer’s benefit. Stated another way, is the employee unable to pass the meal/break time comfortably because his time and/or attention is devoted primarily to the employer’s responsibilities? If the totality of the circumstances leads to the conclusion that the employee is primarily engaged in work-related duties during this meal/break time, then it is compensable time. If not, then it is a free lunch.