How do three Federal Circuit Courts of Appeals hear separate but factually identical cases, yet come to three distinct holdings? That is what happened recently when one set of facts with different plaintiffs was litigated in the Ninth, Fifth, and Eleventh Circuits. The result? A split in the circuits regarding when employers must pay for employees’ mealtime.
Akal Security, Inc. contracted with ICE to provide security officers for the deportation of detainees. The Air Security Officers (ASOs) were responsible for maintaining the safety and tending to the needs of deportees. On the “empty return leg,” the ASOs were mostly free to do whatever they wanted. Although Akal concedes that the empty return legs were compensable work, their policy was to automatically deduct a one-hour meal break from any return flight longer than 90 minutes. Over the past three years, several ASOs sued Akal in different federal district courts, claiming this policy violated the FLSA. The cases were appealed to three different federal circuits and, although the facts in each case were identical, each court applied a different test and issued different rulings.
Under the FLSA, “bona fide meal periods are not worktime.” However, in the three cases brought by Akal employees, the circuits disagreed on the standard to be applied to determine whether mealtime is a “bona fide meal period.” The Ninth Circuit, in Alonzo v. Akal Security Incorporated, 807 Fed. Appx. 718 (9th Cir. 2020), held that Akal’s policy did not violate the FLSA because the ASOs were completely removed from duty and thus, the deducted mealtime was a bona fide, non-compensable meal period. The Fifth Circuit, in Dean v. Akal Security, Incorporated, 3 F.4th 137 (5th Cir. 2021), came to the same conclusion but applied a different standard. The court agreed that Akal’s policy did not violate the FLSA, but not because it satisfied the higher, “completely removed from duty” standard. Rather, the Fifth Circuit held that the proper test to identify a bona fide meal period is the more employer-friendly “predominant benefit” test. Applying that test, because the ASOs received the predominant benefit of the meal period, it was not considered compensable working time.
Most recently, the Eleventh Circuit in Gelber v. Akal Security, Inc., 14 F.4th 1279 (11th Cir. 2021), agreed with the Ninth Circuit that the standard for a bona meal period is the higher “completely removed from duty” standard. However, even though it applied the same test, it held that Akal’s policy did violate the FLSA. The Eleventh Circuit reasoned that Akal could not satisfy its burden of proof that the ASOs were completely removed from duty simply by demonstrating that the ASOs were able to remain idle during that time because Akal had conceded that other idle time of the Empty Return Leg was indeed compensable. The court found it inconsistent of Akal to count other idle time as compensable work while also arguing that the idle time for a meal period satisfied the “completely removed from duty” test. Accordingly, the court held that Akal failed to meet its burden of showing that its employees were completely removed from duty during mealtime and that Akal’s failure to count the meal period as working time violated the FLSA.
To summarize, while the Eleventh and Ninth Circuits agree that the proper test is the “completely removed from duty” test, they came to different conclusions on whether the ASOs’ idle time satisfied the test. The Ninth Circuit held that it did because ultimately the ASOs were idle and completely removed from duty. The Eleventh Circuit held that it did not because even though the ASOs were idle, Akal had conceded that idleness and free time were compensable, therefore idleness and free time could not factor into the “completely removed from duty” analysis. In contrast, the Fifth Circuit will apply the more lenient “predominant benefit” test, and since the ASOs were the predominant beneficiary of the mealtime, it qualifies as a bona-fide, non-compensable meal period.
Following these decisions, whether an employer can deduct meal period pay, and what standard applies, will depend on the circuit where the employees work. The Fifth Circuit’s standard obviously favors employers while the Eleventh Circuit’s standard and rigid application of the “completely removed from duty” test favors employees. The Ninth Circuit, meanwhile, has staked out something of a middle ground between the two. While the facts of the Akal cases are somewhat unique, the standards applied by these courts affect all meal period compensation issues. The confusion surrounding meal period pay created by the circuit split is unlikely to be resolved unless the Supreme Court weighs in on the issue.
If you want to have your employment practices reviewed to ensure that your pay practices, including compensation for meal periods, contact the attorneys at Luchansky Law at (410) 522-1020 or at www.luchanskylaw.com