Court Says Employers May Require an Unpaid Meal Period During Travel Time

​An employer may require a nonexempt, hourly employee to take an unpaid meal period while engaged in travel time, so long as certain conditions are met, according to the 5th U.S. Circuit Court of Appeals. The meal period is not considered work time or compensable travel time if the employee is both relieved from performing any duties during that time and the time otherwise qualifies as a bona fide meal period under the Fair Labor Standards Act (FLSA).

In this case, the employer, a contractor with U.S. Immigration and Customs Enforcement (ICE), hired security officers to accompany and be responsible for deportees on flights carrying them to another country. The security officers' responsibilities ranged from monitoring the deportees to coordinating their trips to the restroom. The security officers were nonexempt, hourly employees for purposes of the FLSA.

The employer had a meal-period policy for the return portion of the flight. The policy required the security officers to take a one-hour, unpaid meal period on any return flight that exceeded 90 minutes and did not have any deportees on board. During the meal period, the security officers were expected to fully disengage from work duties and were permitted to use the time as they wished.

The security officers sued, seeking class certification and claiming the contractor's meal-period policy violated the FLSA by not paying minimum wage for the meal period and failing to pay required overtime wages. The security officers argued the meal times were compensable time and did not qualify as bona fide meal periods.

The trial court granted conditional class certification and then dismissed the minimum wage claim. The employer then moved for summary judgment on the overtime wage claim. The trial court ruled for the employer, finding the security officers had failed to disprove the employer's affirmative showing that the officers had been relieved from work-related duties during meal periods and there was no interruption during their meal breaks.

The 5th Circuit affirmed, determining that it was permissible to require an unpaid meal period during otherwise compensable travel time. The court distinguished previous case law requiring employers to compensate employees for travel time, even when the employees were engaged in downtime or permitted to sleep or engage in personal activities. The court concluded that the regulations and case law on travel time do not bar an employer from requiring an unpaid meal period on airplane flights.

The appeals court also decided that the meal-period policy was permissible, as the facts satisfied the "predominant benefit test," adopted previously by the 5th Circuit, establishing that the meal break was predominantly for the benefit of the employee, not the employer. The court reasoned that the meal-period policy must be analyzed in the context of the relevant workplace. In this case, the security officers failed to identify any work-related duties that interfered with the bona fide meal periods, and thus each employee could use the time effectively for their own purposes. The court therefore concluded the meal-period policy was permissible in this specific context.

Dean v. Akal Security Corp., 5th Cir., No. 20-30306 (June 22, 2021).

Professional Pointer: Employers should be cautious and consider whether the employee is fully relieved from all work duties when considering whether unpaid meal periods are permitted during travel time. If an employer requires an employee to spend time on an activity or remain responsible for more than minimal work-related duties, the employer will have difficulty avoiding compensating the employee for that time. Employers should also view these scenarios in the context of any state-required meal or rest breaks.

Marc Alifanz and John Stellwagen are attorneys with Bullard Law, the Worklaw® Network member firm in Portland, Ore.