Formally adopting the fact-sensitive predominant benefit test to determine whether a meal period is compensable under the Fair Labor Standards Act, the federal appeals court in Philadelphia has held that correction officers who were not “primarily engaged in work-related duties” during their daily meal breaks need not be paid for their breaks. Babcock v. Butler County, 2015 U.S. App. LEXIS 20393 (3d Cir. Nov. 24, 2015).

The Third Circuit, which has jurisdiction over Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands, now joins the Second, Fourth, Fifth, Seventh, and Eighth Circuits in adopting the predominant benefit test.

Background

This putative collective action was initiated by Sandra Babcock, a corrections officer at Butler County Prison in Butler, Pennsylvania, seeking overtime compensation for 15 minutes of an hour-long meal break. She alleged the employer failed to compensate her and those similarly situated for overtime in violation of the FLSA.

The employees had a collective bargaining agreement with Butler County providing that correction officers were to work eight-and-one-quarter-hour shifts, which included a one-hour meal period. Fifteen minutes of the meal period were unpaid.

The parties’ arguments focused on what the corrections officers were permitted to do and restricted from doing during their breaks and, overall, to whose benefit the break inured. The prison’s policy provided that, while on their meal breaks, corrections officers could not leave the prison without permission from the warden or deputy warden, and they must remain in uniform, in close proximity to emergency response equipment, and on call to respond to emergencies. The plaintiffs argued that this policy interfered with their ability to use their meal period to run personal errands, sleep, breathe fresh air, or smoke cigarettes. Butler County filed a motion to dismiss, arguing the corrections officers received the predominant benefit of the meal period. The district court agreed with Butler County and the appellate court affirmed that decision.

Predominant Benefit Test Adopted

Noting that nothing in the FLSA directly addresses compensation for meal periods, the Third Circuit said that courts have generally “eschewed a literal reading of a Department of Labor regulation” stating that during a meal break an employee must be completely relieved from duty. Instead, the Court said, “courts have assessed the totality of the circumstances to determine, on a case-by-case basis, to whom the benefit of the meal period inures.” Courts have utilized two tests to determine the compensability of meal periods. One examines who has received the predominant benefit of the meal break and the other (followed by the Ninth and Eleventh Circuits) asks whether the employee has been relieved from all duties during mealtime. The Third Circuit court adopted the predominant benefit test, holding the application of that test was uncontroversial, as neither party disputed it was proper.

The predominant benefit test asked in this case “whether the officer is primarily engaged in work-related duties during meal periods.” The Court noted the officers could request to leave the prison and could eat away from their desks, which would lower the number of interruptions.

In addition, the parties’ collective bargaining agreement provided a partially compensated meal period and overtime if a meal break was interrupted by work. This arrangement, the Court said, assumed the officers generally were not working during meal periods, but compensated them if they actually worked. The Court cautioned that the collective bargaining agreement was only one of many factors it considered, but that its decision was aligned with jurisprudence holding a collective bargaining agreement cannot be a defense to liability under the FLSA.

Finally, the Court noted neither party suggested that the special provision of the FLSA covering employees engaged in law enforcement activities applied, and so the Court did not consider it.

The Court held that, under the totality of the circumstances, the daily agreed-upon 15 minutes of meal time was not for the predominant benefit of the employer and, therefore, it was not compensable.

Dissent

The dissent strongly criticized the majority’s focus on the parties’ collective bargaining agreement, arguing it was inconsistent with U.S. Supreme Court precedent instructing that a collective bargaining agreement cannot control an FLSA claim and the FLSA always takes precedence over it.

In addition, the dissent argued the majority’s decision failed to recognize Supreme Court precedent on the definition of work. It focused on the fact that the plaintiffs must maintain readiness to serve the defendant during their meal breaks and this restriction makes that time compensable.

Finally, the dissent argued that pre-trial discovery should have been allowed, to permit the Court to access facts necessary to a predominant benefit analysis.

Implications for Employers

Employers covered by the Third Circuit should review their meal break policies to determine whether such breaks are FLSA-compensable under the fact-specific predominant benefit test. Generally, in deciding whether their non-exempt employees’ meal breaks are compensable, employers may consider whether employees:

• may leave the premises, take naps, run personal errands, or socialize;

• are subject to numerous interruptions;

• must stay focused on or cognizant of a work task while on break; or

• have a collective bargaining agreement that delineates the parties’ expectations and compensation for the meal period.

If, under the totality of the circumstances, the majority of the meal break may be spent doing activities of the employee’s choosing, the meal period likely would not be considered compensable time. However, if restrictions during breaks are so onerous that employees still are acting, for the most part, for the benefit of the employer, the breaks are compensable.

Finally, given the dissent’s position on the effect of a collective bargaining agreement and case law clearly establishing that parties may not contract to evade federal law, employers should be wary of relying on a collective bargaining agreement in making these determinations.