Case: 20-30306 Document: 00515910385 Page: 1 Date Filed: 06/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 22, 2021
No. 20-30306 Lyle W. Cayce
Clerk
Hayward Dean, individually and all others similarly situated; Bruce
Dupont; Gary L. Carlton; Ruth Mayeaux; Gregory
Lawrence Sergent; Gregory Williams, Et al.;
Plaintiffs—Appellants,
versus
Akal Security, Incorporated,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:17-CV-543
Before Higginbotham, Southwick, and Engelhardt, Circuit
Judges.
Leslie H. Southwick, Circuit Judge:
The federal government contracted with a security company to
monitor detainees during air travel. Specifically at issue here are return
flights after deportees were taken to a foreign country. Some of the security
company’s employees challenged the company’s meal-period policy. That
policy automatically deducted an hour of pay on return flights that exceeded
90 minutes and had no deportees. The employees argue that this policy
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violated the Fair Labor Standards Act. The district court granted summary
judgment for the company. We AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
The United States Immigration and Customs Enforcement agency
(“ICE”) contracted with Akal Security, Inc., to provide certain personnel for
flights, including those carrying deportees to another country. Akal lost this
contract sometime in December 2017, several months after the named
plaintiff filed his original complaint. The plaintiffs no longer work for Akal,
but they continue to press their challenge to the meal-period policy that
existed during their employment as Aviation Security Officers (“ASOs”)
with Akal.
Akal hired ASOs to control deportees and to respond to their needs
on these flights. The ASOs’ responsibilities ranged from monitoring the
deportees to coordinating deportees’ trips to the restroom. Though there
were pilots and flight attendants on each flight, these individuals were not
Akal employees. The ASOs were nonexempt, hourly employees as defined
under the Fair Labor Standards Act (“FLSA”).
The dispute before us concerns Akal’s meal-period policy for the
return-flight portion of ICE missions. The policy was this:
There is a mandatory un-paid 1 hour meal period on each shift.
This affects all Aviation Security Officers (“ASOs”) and
Leads operating out of Mesa, AZ, San Antonio, TX,
Alexandria, LA and Miami, FL. This meal period will be taken
by all ASOs and Leads on the return leg of each mission.
Exceptions to this rule are the following:
•A mission on which there are detainees on-board for the
return leg of the trip; there will be no un-paid meal period and
ASOs will be paid for the entire mission.
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•If the return leg of a mission is shorter than 90 minutes, there
will be no un-paid meal period and ASOs will be paid for the
entire mission.
The “return leg” is defined as the last leg of the mission prior
to arriving at the point of origin during which there are no
detainees on board and no security duties are required. During
this un-paid meal period, ASOs and Leads will be expected to
disengage from work duties and may use their time as they
wish. As this meal period will be taken in the workplace,
professional conduct must be maintained and any violations of
company policy will not be tolerated.
Though Akal’s policy covered both domestic and international flights, the
plaintiff ASOs challenged the operation of the policy on flights of 90 minutes
or more returning to the United States after deportations had been
completed.
ASOs across the country have brought individual suits and class
actions against Akal, contesting the legality of the meal-period policy. 1 The
argument is that Akal violated the FLSA by not paying the required minimum
wage during this one-hour break because those periods either were
compensable travel time or did not qualify as a bona fide meal period.
The appellants here are ASOs in San Antonio, Texas, and Alexandria,
Louisiana. They claimed two FLSA violations: (1) that the meal-period
1
Two other federal circuits have heard related cases. A panel in the Ninth Circuit
found in favor of Akal, holding that the employee in that appeal did not dispute that he was
relieved of duty during the one-hour break, thus “fail[ing] to raise a triable issue as to
whether Akal is liable for violating the FLSA.” Alonzo v. Akal Sec. Inc., 807 F. App’x 718,
720 (9th Cir. 2020). The Eleventh Circuit heard oral arguments in January 2021, after a
district court found as a matter of law that the ASOs were not completely relieved of duty
and granted judgment in their favor. Gelber v. Akal Sec., Inc., No. 18-14496 (11th Cir. argued
Jan. 15, 2021). These circuits, though, may not apply the same analysis when identifying
whether a bona fide meal period occurred, which we will discuss later.
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policy violated the FLSA because the ASOs were entitled to additional
minimum-wage pay, and (2) that Akal violated the FLSA by not paying the
ASOs’ required overtime wages. The district court granted conditional class
certification, then later dismissed the minimum-wage claim. The ASOs have
not appealed the dismissal of the minimum-wage claim.
Akal sought summary judgment on the remainder of the case, and the
district court granted the motion. It concluded that the ASOs “fail[ed] to
rebut the affirmative showing made by Akal regarding both relief from work-related duties and the lack of interruption of [the ASOs’] meal breaks due to
such duties.” The ASOs appealed.
DISCUSSION
We review a grant of summary judgment de novo, “applying the same
standard as the district court.” Satterfield & Pontikes Constr., Inc. v. U.S. Fire
Ins. Co., 898 F.3d 574, 578 (5th Cir. 2018). There must be “no genuine
dispute as to any material fact” for a proper grant of summary judgment.
Fed. R. Civ. P. 56(a). When reviewing the parties’ evidence, we make all
inferences in favor of the nonmoving party; here, the ASOs. Salazar v.
Lubbock Cnty. Hosp. Dist.,
982 F.3d 386, 388 (5th Cir. 2020).
The claim here is for a violation of the FLSA. Under that Act,
nonexempt employees engaged in commerce are to be paid a minimum wage
for all hours worked. 29 U.S.C. § 206(a). Any hour worked over 40 hours in
a workweek must be paid at “a rate not less than one and one-half times the
regular rate at which the employee is employed.” § 207(a)(1). This
framework sets the stage for the ASOs’ appeal, as they seek overtime pay for
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those meal periods that contributed to more than 40 hours worked in a given
week. 2
The Department of Labor (“DOL”) regulations relevant here are
those that establish “the principles involved in determining what constitutes
working time.” 29 C.F.R. § 785.1. We will defer to DOL regulations
concerning the FLSA when they are “based on a permissible construction of
the statute.” Vela v. City of Hous.,
276 F.3d 659, 667 (5th Cir. 2001) (quoting
Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 842–43
(1984)).
We group the ASOs’ arguments into two categories, though there will
be some overlap. First, we consider whether the entire return flight must be
compensable travel time, which largely but not entirely is an argument that
an uncompensated meal period cannot occur on these flights. Second, we
apply this circuit’s predominant-benefit test to the one-hour breaks that the
ASOs received to determine if a valid, uncompensated meal period occurred.
I. Compensable travel time
Our obligation in this appeal is to apply this simple regulatory
sentence: “Bona fide meal periods are not worktime.” 29 C.F.R. § 785.19(a).
The DOL gives us much more guidance than that sentence, but we wish to
set our course with that clear goal in mind.
The ASOs argue that the entire return flight was compensable.
Because Akal compensated the ASOs for all but one hour of the empty return
flights, the critical question is whether an employee, while engaged in
otherwise compensable air travel, can be subject to a bona fide meal period.
2
Akal acknowledges “that [if] the meal period is compensable, there is no dispute
that the parties could easily calculate the number of alleged overtime hours that were
unpaid by a review of Akal’s records.”
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There are travel regulations that mention excluded meal periods, and
there are others that do not. We review the regulatory scheme as a whole
when applying the DOL’s interpretations of travel time and meal periods.
See Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380, 399–400 (5th Cir. 2014).
No DOL regulation prohibits a bona fide meal period during travel.
When overnight travel is required of employees, “[r]egular meal period time
is not counted” as hours worked. 29 C.F.R. § 785.39. Salient, but of
contested application, is a regulation that Akal argues is directly on point
because it discusses meal periods on airplanes. The ASOs argue it is
irrelevant because they were not the kinds of employees within the coverage
of the regulation. That regulation reads:
Any work which an employee is required to perform while
traveling must, of course, be counted as hours worked. An
employee who drives a truck, bus, automobile, boat or airplane,
or an employee who is required to ride therein as an assistant
or helper, is working while riding, except during bona fide meal
periods or when he is permitted to sleep in adequate facilities
furnished by the employer.
§ 785.41. Akal insists the ASOs were required to “ride” in the airplane, but
the rebuttal is that an ASO was not an “assistant or helper” to the “driver.”
One perspective on meaning is that a pilot could not handle all that was
necessary in these flights without considerable help. Still, we conclude the
appeal can be decided without applying that regulation.
One regulation on which the ASOs rely states that “[t]ime spent by
an employee in travel as part of his principal activity, such as travel from job
site to job site during the workday, must be counted as hours worked.”
§ 785.38. This regulation prohibits a noncompensable meal period, the ASOs
argue, because they were required to return on the airplanes, and they had
additional duties required of them upon landing at their home base. Akal
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does not dispute those facts, but it certainly has a different view of their
significance. 3
In support of their interpretation of Section 785.38, the ASOs discuss
an unpublished Eleventh Circuit opinion. Burton v. Hillsborough Cnty., 181
F. App’x 829 (11th Cir. 2006). The panel of that court held that county
employees who were required to pick up and return county-owned vehicles
that contained the necessary work tools for that day had compensable travel
time retrieving and returning the county-owned vehicles pursuant to Section
785.38.
Id. at 837–38. A district court in this circuit also held that, under
Section 785.38, return travel time to a landscaping company’s home base to
conduct additional work constituted compensable time. Cantu v. Milberger
Landscaping, Inc.,
12 F. Supp. 3d 918, 922–23 (W.D. Tex. 2014). We need
not determine our agreement with either analysis because even if those
holdings are correct, neither considered a meal period during the travel. 4
Further, we do not see in Section 785.38 either approval or a bar to a meal
period.
The ASOs next propose that any downtime during the return flights
was compensable. Under Section 785.21: “[a]n employee who is required to
be on duty for less than 24 hours is working even though he is permitted to
sleep or engage in other personal activities when not busy.” Additionally,
under Section 778.223, idle hours may be compensable when the employee is
required to remain on duty. Relatedly, the Supreme Court has allowed
3
Akal states, in a footnote, that the ASOs were not “traveling” as the term is meant
in the FLSA. There is no significant argument about that point of definition, and we do not
need to address it.
4
A judge for a Northern District of Alabama case held: “Travel time does not
include a bona fide meal period” under Section 785.38. Hilley v. Tacala, L.L.C., No. 2:12-
CV-2691, 2014 WL 1246364, at *17 (N.D. Ala. Mar. 24, 2014). We cite that here as one
opinion that analyzed meal periods specifically in connection with travel.
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certain inactive time to be compensable. See Armour & Co. v. Wantock, 323
U.S. 126, 134 (1944). The Armour Court held that the FLSA mandated
compensation, even though “the nature of the duty left time hanging heavy
on the employees’ hands.”
Id. In Armour, though, the district court had held
that the “[u]sual hours for sleep and for eating . . . would not be counted” as
hours worked,
id. at 129, and the Supreme Court did not comment on the
exclusion of meal periods from the otherwise compensable downtime in that
case.
In conclusion, we do not find in the regulations or caselaw analyzing
general rules on travel time any bar to providing for a noncompensable meal
period on airplane flights. We now examine the authorities specifically on
meal periods to determine Akal’s compliance with them.
II. Bona fide meal period
Akal argues that one hour of these return flights was noncompensable
because it was a bona fide meal period. Compensation for all hours worked is
the rule, but the regulations provide that an unpaid meal break can occur
during the workday when certain conditions are met.
The most relevant regulation is this:
Bona fide meal periods are not worktime. Bona fide meal
periods do not include coffee breaks or time for snacks. These
are rest periods. The employee must be completely relieved
from duty for the purposes of eating regular meals. Ordinarily
30 minutes or more is long enough for a bona fide meal period.
A shorter period may be long enough under special conditions.
The employee is not relieved if he is required to perform any
duties, whether active or inactive, while eating. For example,
an office employee who is required to eat at his desk or a factory
worker who is required to be at his machine is working while
eating.
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29 C.F.R. § 785.19(a). The regulation also provides that employees do not
need to be granted permission to leave the premises for a meal period to
occur. § 785.19(b).
Since 1956, Section 785.19(a) has provided that “[t]he employee must
be completely relieved from duty for the purposes of eating regular meals.”
See Roy v. Cnty. of Lexington, 141 F.3d 533, 544 (4th Cir. 1998) (noting the
relevant language was promulgated in 1956). Some circuits have interpreted
this language as creating a higher standard than the widely used
“predominant-benefit test.” See, e.g., Busk v. Integrity Staffing Sols., Inc.,
713
F.3d 525, 531–32 n.4 (9th Cir. 2013), rev’d on other grounds,
574 U.S. 27
(2014). In 1998, the Fourth Circuit concluded that the DOL regulation’s
“completely relieved of duty” language did not conflict with the
predominant-benefit test because the Secretary of Labor approvingly cited a
Sixth Circuit case that applied the “‘predominantly for the employer’s
benefit’ standard.” Roy, 141 F.3d at 544 (quoting F.W. Stock & Sons, Inc. v.
Thompson,
194 F.2d 493, 496 (6th Cir. 1952)). The predominant-benefit test
thus survived the language that the DOL implemented in 1956. We adopted
the predominant-benefit test in 1998, joining, at that time, “most circuit
courts.” Bernard v. IBP, Inc. of Neb.,
154 F.3d 259, 264 n.16 (5th Cir. 1998).
We will explain our considerations under that test later.
The Ninth and the Eleventh Circuits may review under a heightened
standard. The Ninth Circuit seemingly determines, strictly as a matter of
fact, whether the employee has been “completely relieved of duty.” See
Busk, 713 F.3d at 531–32. A panel of that court later applied that test to the
ASOs and mealtimes during flights, then found in favor of Akal because the
employee had at least one hour of free time during the return flights. Alonzo
v. Akal Sec. Inc., 807 F. App’x 718, 720 (9th Cir. 2020). The Eleventh Circuit
has held that “the essential consideration . . . is whether the employees are
in fact relieved from work for the purpose of eating a regularly scheduled
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meal.” Kohlheim v. Glynn Cnty., 915 F.2d 1473, 1477 (11th Cir. 1990). It has
also affirmed a district court’s application of the predominant-benefit test.
Avery v. City of Talladega,
24 F.3d 1337, 1346–47 (11th Cir. 1994). In January
2021, the Eleventh Circuit heard arguments on another ASO challenge to the
meal-period policy. Gelber v. Akal Sec., Inc., No. 18-14496 (11th Cir. argued
Jan. 15, 2021).
The Third Circuit has reasoned that the various Ninth Circuit and
Eleventh Circuit precedents did not actually adopt the completely-relievedof-duty test, concluding that neither court actually applied that test. Babcock
v. Butler Cnty., 806 F.3d 153, 156 (3d Cir. 2015). We mention this view only
as part of the context for considering the differences in resolutions among the
circuits’ review of factually similar cases. Regardless of the proper
understanding of the other circuits’ precedents, we are bound by our own.
We apply the predominant-benefit test. Naylor v. Securiguard, Inc.,
801 F.3d 501, 506 (5th Cir. 2015); Bernard,
154 F.3d at 264 n.16 (citing five
other circuits as approving of this approach at the time). When we apply that
test, we consider whether the employee or the employer received the
predominant benefit from the meal break. Naylor,
801 F.3d at 506. Factors
relevant for this consideration include:
[1] whether the employees are subject to real limitations on
their personal freedom which inure to the benefit of the
employer; [2] whether restrictions are placed on the
employee’s activities during those times, such as whether or
not the employee may leave the work site if he chooses;
[3] whether the employee remains responsible for substantial
work-related duties; and [4] how frequently the time is actually
interrupted by work-related duties.
Bernard, 154 F.3d at 265.
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This language originated as a quote from a jury instruction. Id. Judge
Wisdom for our court concluded that this “language used by the district
court accurately reflects the standard and factors employed by the courts
when applying the predominant benefit test.”
Id. at 266. We continue to
agree with the district court in Bernard when it prefaced its instruction with
the phrase that these were “[a]mong the factors” to consider.
Id. at 265
(quoting the jury instruction). There may be other considerations that also
would be relevant. We do not see any others in this case, though.
Before analyzing those factors, we briefly address two preliminary
matters. First, the parties disagree on who bears the burden of proof. This
issue need not be resolved because even if Akal carries the burden of proof,
it succeeded in carrying that burden. 5 Second, the ASOs posit that this
court’s test is so fact intensive as to preclude granting summary judgment.
Though we acknowledge that the test certainly requires a review of the facts,
that alone would not prevent application of the test at the summary-judgment
stage. See, e.g., Naylor, 801 F.3d at 508 (affirming, in part, summary
judgment in favor of an employer because the mandatory travel time was too
de minimis to interfere with certain employees’ lunch break). As with
summary judgments generally, if there are no genuine disputes of material
fact, summary judgment is appropriate. An example of affirming summary
judgment in a meal-period case is in the nonprecedential decision of Alvarez
v. City of El Paso,
32 F. App’x 126,
2002 WL 334630, at *1 (5th Cir. 2002).
We conclude, as implicitly the Alvarez panel must have as well, that there is
5
Fifth Circuit precedent clearly places the burden on the employer. See, e.g.,
Naylor, 801 F.3d at 508. Akal’s argument is that intervening Supreme Court authority
requires us to “modernize” the placement of the burden. See Encino Motorcars, LLC v.
Navarro,
138 S. Ct. 1134, 1142 (2018). We do not resolve whether revising this circuit’s
position is proper, as we determine Akal succeeded in carrying the burden.
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nothing inherent in the predominant-benefit test’s factors that prevents
summary judgment in an appropriate case.
The preliminary issues resolved, we now apply the predominant-benefit test. The overall goal of the analysis is to determine “whether the
employee can use the time effectively for his or her own purposes.” Bernard,
154 F.3d at 266 (quoting Henson v. Pulaski Cnty. Sheriff Dep’t,
6 F.3d 531, 534
(8th Cir. 1993)). We will return to the initial factor in the analysis, “whether
the employees are subject to real limitations on their personal freedom which
inure to the benefit of the employer,” after considering the categories of
limitations that the other factors describe. See
id.
The second factor examines restrictions on the employee’s activities
during the meal breaks, including whether they may leave the work site. See
id. Here, the ASOs are prevented from leaving the worksite during the
mandatory meal break and may not use their cellular phones or other
handheld devices that require internet access. The ASOs contrast these
restrictions to cases where the employees went to break rooms or otherwise
left their “workspaces” to enjoy their meals.
Akal’s restrictions, of course, are inherent to working on an airplane
rather than established at the discretion of the employer. At least one
regulation, previously discussed, applies to those whose job requires
“working while riding [on an airplane], except during bona fide meal
periods.” 29 C.F.R. § 785.41. The only issue as to that regulation, which we
already mentioned, is whether the ASOs are within the class of assistants and
helpers to the pilot that the regulation contemplates. Regardless, a
noncompensable meal period — even if movement is confined to an airplane
or other mode of transportation — is recognized by that regulation. Even
beyond the restrictions that arise from being in an airplane, the regulations
more generally do not require that the employee be allowed to leave the place
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of work to enjoy a bona fide meal period. § 785.19(b). Many cases
acknowledge that some limitations on an employee are acceptable during a
meal period, such as requiring them to remain in uniform, on the jobsite, and
available to respond to emergencies if needed. See, e.g., Ruffin v. MotorCity
Casino, 775 F.3d 807, 812–15 (6th Cir. 2015).
We conclude that the effect of any limitations on the ASOs’ activities
imposed during an ostensible meal period must be analyzed in the context of
the relevant workplace. These restrictions on the ASOs’ activities do not
undercut the validity of the meal break.
We will consider the final two factors together: “whether the
employee remains responsible for substantial work-related duties; and how
frequently the time is actually interrupted by work-related duties.” Bernard,
154 F.3d at 265. Any infrequent interruptions do not invalidate the policy of
a noncompensable meal period. The Sixth Circuit has held, for example, that
regularly having to monitor a radio during meal periods and responding if
called did not transform the meal period into compensable worktime.
Ruffin,
775 F.3d at 812. 6 We agree with that analysis. The record here shows
that the ASOs almost always had at least one hour on the return flights when
they had no work-related duties. We discover deposition testimony by one
ASO that she occasionally had to work during a break on these empty return
flights, but there was no evidence of other employees who had to work during
a meal break or of any substantial or frequent interruptions during an
announced meal period. Other employees testified that on return flights they
received at least one hour of free time to spend as they pleased.
6
We note that the Sixth Circuit places the burden of proof on the employee,
whereas we place the burden of proof on the employer. Compare Ruffin, 775 F.3d at 811,
with Bernard,
154 F.3d at 265. Regardless, we find the analysis of the limitations discussed
in Ruffin persuasive.
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We now return to the first factor. In this context, no benefit to Akal
(not counting the monetary one) has been shown arising from the inevitable
restrictions on mobility or the prohibitions on the use of technological devices
when confined to the airplane. The only limitations were those inherent to
being on an airplane, and they did not inure to Akal’s benefit. As to the
application of the policy, the ASOs have not presented evidence that they did
not regularly receive this one hour of personal time on every return flight,
free from work-related duties. We agree with the district court that the ASOs
“fail to identify any work-related duties they claim interfered with the bona
fide meal periods.” Thus, each “employee can use the time effectively for
his or her own purposes.” Bernard, 154 F.3d at 266.
We conclude that the ASOs were the ones who predominantly
benefited from the one-hour meal periods.
Beyond making arguments about the predominant-benefit test, the
ASOs also argue that the meals needed to be regularly scheduled. 7 The ASOs
rely on one of our decisions in which this sentence appears: “[t]he meal
period must be scheduled, occur at a regular time, and normally be thirty
minutes or more. 29 C.F.R. § 785.19.” Lee v. Coahoma Cnty.,
937 F.2d 220,
225 (5th Cir. 1991). Despite that language, the Lee court held that the law
enforcement agency’s “catch as catch can” meal periods were properly
classified as bona fide and exempt from compensation.
Id. A close look at
the sentence in Lee about regular mealtimes reveals that it follows two
sentences that were explicitly about what the employees were claiming, and
7
Another ASO argument is that the ostensible mealtime did not actually have any
“connection to eating.” We do not see any requirement that an employee actually eat a
meal, only that sufficient time for a meal is provided. Certainly, a mandatory,
noncompensable meal period cannot be unreasonably long. One hour in these
circumstances was a reasonable amount of time. We do not further analyze the length of a
valid meal break.
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it precedes one final sentence of explanation about the employees’
arguments. Id. In light of the holding in Lee, which did not require a set
schedule for meals, the court when mentioning regularity of meals must have
simply been continuing its explanation of the employees’ position on appeal. 8
The Tenth Circuit has concluded similarly. See Bates v. Dep’t of Corr. of State
of Kan.,
81 F.3d 1008, 1011–12 (10th Cir. 1996). Significantly, this court has
not suggested since Lee that a regular schedule for meals is required.
Finally, Akal’s failure to record when each ASO took a meal break
does not alter our conclusion. An automatic deduction such as was done here
will not itself violate the FLSA. See White v. Baptist Mem’l Health Care Corp.,
699 F.3d 869, 873 (6th Cir. 2012). The ASOs concede that “what matters is
whether the employees are given bona fide meal breaks under the Act.”
These one-hour breaks satisfy the regulation and this circuit’s
predominant-benefit test.
AFFIRMED.
8
The language of Section 785.19(a) further supports this interpretation, as the
regulation states only that “[t]he employee must be completely relieved from duty for the
purposes of eating regular meals,” not regularly scheduled ones.
15
