Third Circuit Adopts New Test for Determining Whether Meal Breaks Are Compensable

On November 24, 2015, a divided U.S. Court of Appeals for the Third Circuit found that the “predominant benefit” test should be applied when determining whether mealtime breaks constitute compensable time under the Fair Labor Standards Act (“FLSA”). In Babcock v. Butler County, No. 14-1467 (3d Cir. November 24, 2015), the Third Circuit ruled that meal periods are compensable if the meal period is primarily for the employees' benefit. In Babcock, the named-plaintiff, a county corrections officer, brought a putative collective action under the FLSA seeking overtime compensation for 15 minutes of an hour long meal break for which the plaintiffs were not compensated (the employer did pay plaintiffs for the remaining 45 minutes).  The prison’s meal period policy provided that corrections officers were not permitted to leave the prison without permission, must remain in uniform and in close proximity to the emergency response equipment, and must be prepared to respond to emergencies.  Plaintiffs argued these restrictions interfered with their ability to use their meal period for their own benefit, such as running personal errands, sleeping, taking fresh air breaks or smoking a cigarette, and that they were therefore entitled to be paid for the full hour long meal period and not just the first 45 minutes. After noting that the FLSA does not directly address the issue of the compensability of meal periods, the Third Circuit analyzed the two tests commonly used in other circuits – (1) the “predominant benefit test” – whether the employee is primarily engaged in work-related duties during meal periods; or 2) the “relieved from all duties test” – whether the employee is relieved from performing all work-related duties during the meal period.  The Third Circuit held that the predominant benefit test was the more appropriate standard. The predominant benefit test is a fact-intensive inquiry focusing on the totality of the circumstances. Factors considered include whether the employee is free to leave the premises, the frequency and number of interruptions during the meal period, whether the employee is in fact relieved from work for the purpose of eating a regularly scheduled meal, and the existence of collective bargaining agreement (“CBA”) provisions addressing meal periods. While the employer in Babcock placed a number of restrictions on the corrections officers’ meal periods, the Court concluded that the officers were not primarily engaged in work-related duties during the meal period and therefore the meal break predominantly benefited the officers, not the employer. In its analysis, the Court highlighted the fact that the corrections officers had the ability to request permission from the employer to leave the prison for their meal period and were not required to eat at their desks or stations. Additionally, the corrections officers were covered by a CBA which required partial meal period compensation and overtime compensation if the meal period was interrupted by work, which suggested a recognition that the officer generally is not working during the meal period.  Under the totality of these circumstances, the Court concluded that the 15 minute meal period was not compensable. The Third Circuit now joins the Second, Fourth, Fifth, Seventh and Eighth Circuits in adopting the predominant benefit test for determining if employee time is compensable. The Ninth and Eleventh Circuits follow the relieved of all duties test. In light of the Third Circuit’s decision, employers should review their policies on meal periods to determine whether a meal period is compensable under the FLSA.  Employers should also be mindful that the Babcock decision represents the Third Circuit’s position on when a meal period is compensable and the State Departments of Labor for the states within the Third Circuit (New Jersey, Pennsylvania, and Delaware) are free to take a different enforcement posture. For assistance in reviewing meal period break policies or other Wage and Hour issues, please contact John R. Vreeland, Esq., Director of the Wage & Hour Compliance Practice Group, at 973.535.7118 or  jvreeland@genovaburns.com.