Raper v. State

CADY, Justice

(concurring in part and dissenting in part).

I respectfully dissent. While I agree with the majority in most respects, I have two points of disagreement.

First, the majority finds substantial evidence to support the district court’s conclusion that “the peace officers’ meal period was undertaken ‘primarily for the benefit of the employer.’ ” I believe the majority reaches this result by acknowledging, but then not applying, the proper test.

In order to qualify as a bona fide, non-compensable meal period, the relevant Department of Labor regulation provides, “The employee must be completely relieved from duty for the purposes of eating regular meals.... The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating.” 29 C.F.R. § 785.19 (a). However, the majority of federal circuit courts have rejected the “completely relieved of duty” test to comport with the Supreme Court’s definition of work. Harris v. City of Boston, 253 F.Supp.2d 136, 143 (D.Mass.2003); see, e.g., Henson v. Pulaski County Sheriff Dep't, 6 F.3d 531 , 534 (8th Cir.1993) (‘We conclude that the predominantly-for-the-benefit-of-the-employer standard provides the appropriate test for determining the compensability of meal periods under the FLSA. Established in the earliest Supreme Court cases interpreting the FLSA, this standard comports with the Supreme Court’s admonition to use a practical, realistic approach under the unique circumstances of each case when deciding whether certain activities constitute compensable work.” (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 , 65 S.Ct. 161, 164 , 89 L.Ed. 124, 129 (1944); Armour & Co. v. Wantock, 323 U.S. 126, 133 , 65 S.Ct. 165, 168 , 89 L.Ed. 118, 124 (1944)). Thus, the test is not whether the officers were completely relieved of duty during their meal periods, but “whether the restrictions imposed by the employer on an officer’s disposition of a meal break are such that the break is predominantly for the benefit of the employer.” Avery v. City of Talladega, 24 F.3d 1337 , 1345 (11th Cir.1994) (emphasis added); accord Hartsell v. Dr. Pepper Bottling Co., 207 F.3d 269, 274 (5th Cir.2000); Roy v. County of Lexington, 141 F.3d 533 , 544 (4th Cir.1998); Reich v. S. New England Telecomms. Corp.,. 121 F.3d 58, 64 (C.A.2, 1997); Leahy v. City of Chicago, 96 F.3d 228 , 230 n. 2 (7th Cir.1996); Henson, 6 F.3d at 534; Lamon v. City of Shawnee, 972 F.2d 1145, 1155 (10th Cir.1992).

Courts rely upon various factors in utilizing the predominant-benefit test, including

the limitations and restrictions placed upon the employees, the extent to which those restrictions benefit the employer, *57 the duties for which the employee is held responsible during the meal period, and the frequency in which the meal periods are interrupted.

Bernard v. IBP, Inc., 154 F.3d 259 , 266 (5th Cir.1998) (citing Henson, 6 F.3d at 534). At least one court has observed that the last factor is most important. See O’Hara v. Menino, 253 F.Supp.2d 147, 157 (D.Mass.2003) (“[T]he key is whether the lunch period is regularly interrupted.”); see also 3 Empl. Coordinator (RIA) Compensation § 23:11 (2004) (“[I]t is the frequency and extent of mealtime interruptions, rather than their mere possibility, that will influence the ultimate determination of overtime entitlement.”). In addition, several courts have explained that meal periods are not compensable if the employee is able to “comfortably and adequately spend the mealtime.” Leahy, 96 F.3d at 231 n. 2 (citing Lamon, 972 F.2d at 1155-56 ); accord Avery, 24 F.3d at 1347; Alexander v. City of Chicago, 994 F.2d 333, 337 (7th Cir.1993).

The record in this case shows that during meal periods, the officers were required to stay in uniform, remain in radio contact, and respond to questions and calls for assistance. The majority acknowledges that these restrictions do not convert the meal periods into hours worked. See Roy, 141 F.3d at 545-46 (finding meal periods not compensable when employees could only be interrupted in emergencies (and in fact were interrupted only 27% of the time) and “could go anywhere within their 82 square-mile response zones during mealtime”); Barefield v. Vill. of Winnetka, 81 F.3d 704, 710 (7th Cir.1996) (“[T]he only restriction on the civilian plaintiffs meal period was that they had to remain in the police department building or in radio contact with the building in case of an emergency. Therefore, the meal periods are not compensable under the FLSA....”); Avery, 24 F.3d at 1347 (The City undoubtedly benefits from the restrictions it imposes on the plaintiffs meal breaks, but the fact that the City benefits from the restrictions does not mean that the plaintiffs meal breaks are predominantly for the City’s benefit. The overwhelming testimony of the patrol officers and patrol lieutenants themselves is that they are free to spend their meal breaks in any way they wish so long as they remain in uniform, leave their radios on, and do not leave the jurisdiction. The detectives need simply leave a phone number where they can be reached in case of an emergency. The plaintiffs may return home, stop at the bank, pick up their dry cleaning, or run other personal errands. In sum, the plaintiffs are able to “comfortably and adequately pass[] the mealtime.” (Footnote and citation omitted.)); Henson, 6 F.3d at 536 (“The only potential restrictions on the officers use of their meal periods for their own purposes arise from the possibility that citizens might ask them questions and from the monitoring of their radios for emergency calls to return to service. We conclude that these restrictions could not support a finding that the patrol officers spend their meal breaks predominantly for the benefit of their employer.”).

However, the majority then goes on to find the officers’ meal periods compensable based on the facts that they cannot go home for meals, are required to eat at visible restaurants, are prohibited from conducting some personal business, “spend most of their meal time discussing patrol business,” and are “quite often interrupted by the general public requesting directions or information.” I agree there may be substantial evidence to support most of these findings; however, I do not agree that these additional matters mean the time is spent predominantly for the benefit of their employer. For the most part, the officers can eat when they want and *58 where they want. They can eat with whom they want and can talk about what they want. It is irrelevant that they usually choose to discuss business matters. Moreover, there was no evidence to define the frequency or extent of the interruptions, only that they would occur from time to time. I believe that using “a practical approach based on the realities of [this] case,” Reimer v. Champion Healthcare Corp., 258 F.3d 720, 725 (8th Cir.2001) (citation omitted), and considering the purpose of mealtime, it cannot be said that the officers’ mealtime was predominantly for the benefit of their employer. The officers were still able to “comfortably and adequately” utilize the mealtime for its general intended purpose. Avery, 24 F.3d at 1347. Any imposition was minimal. Accordingly, I would reverse the judgment of the district court on this issue.

Second, I take issue with the majority’s analysis of the drive time issue. The district court found drive time was not com-pensable because there was no custom to treat drive time as work time. On our review at law, the majority finds no substantial evidence to support this finding. It concludes a custom must have existed because the Commissioner would not have otherwise issued an order declaring drive time would not be compensable. The logic employed by the majority to reach this conclusion is faulty. Orders are not issued only when necessary to change some existing principle. Moreover, a declared desire to limit future liability for overtime after the filing of a lawsuit does not constitute an acknowledgement of past liability for drive time compensation. Under our review at law, we should not draw questionable conclusions from the evidence to support a finding contrary to the trial court. The trial court found there was no custom to treat drive time as work time for these officers because the department considered the officers in question to be salaried employees during the same period of time the officers claimed a custom was established. Thus, the department could not have established a custom to do something it never actually contemplated. There was substantial evidence to support the decision of the trial court.