An employer can require an unreleased, hourly worker to have an unpaid meal during the travel time, as long as certain conditions are met, according to the 5th U.S. Court of Appeals. Meal time does not count as work time or creditable travel time if the employee is both relieved of his or her duties during that time and the time is otherwise considered honest meal time under the Fair Labor Standards Act (FLSA).

In this case, the employer, a contractor for the US Immigration and Customs Enforcement (ICE), has hired security officers to accompany the deportees on flights to another country and to be responsible for them. The tasks of the security officers ranged from monitoring the deportees to coordinating their visits to the toilet. The security guards were not exempted, hourly employees in the sense of the FLSA.

The employer had a meal schedule for the return flight segment. The policy required security guards to eat an hour unpaid meal on any return flight that exceeded 90 minutes and had no deportees on board. During mealtime, the security guards were expected to be able to take full time off work and use the time as they please.

The security officers sued, requested class certification, and alleged the contractor’s mealtime policy was in violation of the FLSA by failing to pay the minimum mealtime wage and required overtime wages. Security officials argued that meal times were countable times and did not qualify as honest meal times.

The court of first instance issued a conditional class certificate and then rejected the claim to the minimum wage. The employer then applied for a summary judgment on the overtime wage entitlement. The court of first instance ruled in favor of the employer and found that the security officers had not disproved the employer’s confirmation that the officers had been relieved of their work-related duties during meal times and that there had been no interruptions during meal breaks.

The 5th district confirmed this and stated that it was permissible to demand unpaid mealtime during the otherwise compensated travel time. The court distinguished the previous case law, which obliged employers to reimburse employees for travel time, even if the employees had downtime or were allowed to sleep or performed personal activities. The court concluded that travel time regulations and case law do not prevent an employer from requesting unpaid mealtime on airplane flights.

The appellate court also ruled that the meal break policy was permissible because the facts met the “predominant performance test” previously adopted by the 5th District, which found that the meal break was primarily for the benefit of the employee and not the employer. The court argued that mealtime policy should be analyzed in the context of the workplace. In this case, the security guards could not identify any work-related tasks that interfered with honest meal times, and thus each employee could effectively use the time for their own purposes. The court therefore concluded that the mealtime regime was permissible in this particular context.

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

Professional note: Employers should be careful in considering whether unpaid meal times are allowed during travel time and check that the employee is fully relieved of all work duties. If an employer requires an employee to devote time to an activity or to remain responsible for more than minimal work-related duties, the employer will have difficulty avoiding compensation to the employee for that time. Employers should also consider these scenarios in the context of government-mandated meal or rest breaks.

Marc Alifanz and John Stellwagen are attorneys at Bullard Law, a member of the Worklaw® Network in Portland, Oregon.

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