Deducting Mealtime from Overtime Pay of Employees on Inactive Duty Violates FLSA

​When an employer acknowledges that "idle time" spent by employees on the return leg of a work flight is compensable travel time, attempts to deduct an hour of mealtime from their overtime pay for the flight violate the Fair Labor Standards Act (FLSA), the 11th U.S. Circuit Court of Appeals ruled.

The plaintiffs were air security officers (ASOs) employed by a government contractor that repatriated persons ordered removed from the United States. Detainees were transported by plane, and the contractor staffed the flights with ASOs to ensure safety.

After transporting the detainees to their destinations, the ASOs were required to return to the U.S. aboard the same aircraft. On the return flights, called "empty return legs," ASOs had few affirmative duties and were allowed to sleep, meditate, play video games, read or watch television. Upon arrival, the ASOs unloaded and cleaned the plane and performed other minor administrative duties to prepare for the following day.

The contractor acknowledged that, under the FLSA, it had to pay its ASOs for overtime spent on the empty return legs, and it generally did. However, for empty return legs lasting longer than 90 minutes, the contractor had a different policy: It automatically deducted one hour from each shift as a "meal period." ASOs were instructed to disengage from work duties during these meal periods and use their time as they wished. The contractor didn't record actual meal periods but simply subtracted one hour from each ASO's timesheet.

The ASOs sued the contractor for unpaid wages. The district court granted summary judgment to the plaintiffs, finding that the automatic "meal deductions" violated the FLSA. It also held that the contractor had acted in good faith and hadn't willfully violated the act.

On appeal, the court examined whether the contractor was entitled to make the challenged meal-period deductions from otherwise compensable work.

The court began its analysis by noting that the FLSA requires employers to pay overtime wages to employees for all "hours worked" over 40 per week. To determine whether an employee's time constitutes work, the Supreme Court has adopted the predominant benefit test, which states that time spent at the employer's behest is work when it is "predominantly for the employer's benefit."

U.S. Department of Labor regulations provide guidance in interpreting the term "hours worked" in certain situations. Specifically, 29 C.F.R. §785.19 states that an employee "must be completely relieved from duty for the purposes of eating regular meals" and that the employee is not relieved if the worker "is required to perform any duties, whether active or inactive, while eating."

The court noted that two issues arose in this case: 

• Who bears the burden of proof? Must the ASOs prove they were performing work during meal periods, or must the contractor show it was entitled to exclude a meal period from compensable time? 
• What standard does §785.19 embody?

Turning to the question of burden of proof, the court held that a burden-shifting scheme, such as the one articulated by the Supreme Court in Anderson v. Mt. Clemens Pottery Co., applies in meal-break cases. Thus, once an employee satisfies the burden of showing that the logged work hours are generally compensable, the employer bears the burden of proving that the carved-out "meal periods" are bona fide, the court said. In this case, the contractor acknowledged that the idle time spent on the empty return leg was compensable travel time and thus bore the burden of showing it was entitled to automatically deduct an hour from the ASOs' overtime pay, the court held.

The contractor maintained that the plaintiffs had one hour of time on the return flights during which they were completely relieved from duty for a meal break and for which they should not be paid. However, because nothing distinguished the meal breaks from the other idle but compensable time on the flights, the contractor would have to point to something other than the fact that the ASOs were idle on the flights to exclude the one-hour meal breaks from overtime pay, the court said. In this case, "the mere fact of waiting (or traveling) is work," the court said.

The 11th Circuit's meal-breaks case law further confirmed this conclusion, the court added. The appeals court has adopted the guidance provided in §785.19, which states that deduction of meal breaks from overtime pay requires complete relief from duty. "By its plain terms, §785.19 sets out the completely- relieved-from-duty standard, not the predominant-benefit standard; it says that the existence of any duties—'whether active or inactive'—renders a meal period not 'bona fide.' "

The ASOs were not completely relieved from duty in this case; they were engaged in inactive duty—waiting until they arrived home to carry out administrative tasks—and so were not completely relieved "for the purpose of eating a regular meal," the court stated, affirming the lower court's holding for the plaintiffs.

Noting that this case presented a question of first impression for the appellate court, the 11th Circuit also affirmed the district court's finding that the contractor had acted in good faith on the advice of counsel and did not willfully violate the FLSA. The contractor's outside counsel testified at trial that the company had sought his advice regarding its meal-break policy and that he advised the firm the policy comported with the FLSA.

Gelber v. Akal Security Inc., 11th Cir., No. 18-14496 (Sept. 30, 2021), petitions for rehearing and rehearing en banc denied (Dec. 1, 2021).

Professional Pointer: Employers should take care in assuming obligations under the FLSA. The court pointed out in a footnote that the contractor's "concession that the empty return legs constitute compensable work may or may not be correct." The contractor's assumption that the return trips were compensable—and its explicit acknowledgment that idle time on the return trips was compensable travel time—allowed the plaintiffs to satisfy their initial burden of showing that they performed work for which they were inadequately compensated without showing any affirmative proof.

Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.