# Appendix — Leahy v. City of Chicago > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0217%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1997 - **Citation:** 520 U.S. 1228 ## Text Supremé Court, U.8. FILED ys 961240 FE 4 1997 NOFFICE OF THE CLERK In THE Supreme Court of the United States OCTOBER TERM, 1996 DANIEL LEAHY, et al., Petitioners, vs. CITY OF CHICAGO, Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit APPENDIX TO THE PETITION FOR WRIT OF CERTIORARI PERRY M. BERKE SUSAN P. MALONE Counsel of Record 20 N. Wacker Drive BURTON I. WEINSTEIN Suite 1900 Baskin, Server, Berke, Chicago, Illinois 60606 Weinstein & Spiro (312) 726-2638 20 N. Wacker Drive Suite 1900 Chicago, Illinois 60606 (312) 346-8090 Attorneys for Petitioners Midwest Law Printing Co., Chicago 60610, (312) 321-0220 rer ee eee tere meee Pete TABLE OF CONTENTS APP. PAGE A—Leahy Appeal II, 96 F.3d 228 (7th Cir. 1996), and Order Deny- ing Petition for Rehearing with Suggestion for SG ee Bor an A-l B—Leahy II, District Court Opinion (1995) .............. B-1 C—Leahy Appeal I, 994 F.2d 333 (7th Cir. 1998) ............... C-1 D—Leahy I, 785 F.Supp. 726 (N.D. Ill. 1992) ........... D-1 E—Statutes and Regulations .................. E-1 F— Names of Individual Petitioners ............ F-1 A-l APPENDIX A IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Nos. 95-2015, 95-2016, 95-2017, 95-2018 DANIEL LEAHY, JAMES MARTINEZ, MICHAEL D. Moore, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, ILLINOIS, Defendant-Appellee. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 89 C 9354—George M. Marovich, Judge. ARGUED APRIL 11, 1996—DEcIDED SEPTEMBER 11, 1996 Before BAUER, CUDAHY, and Evans, Circuit Judges. BAvuER, Circuit Judge. Chicago police officers sued the City of Chicago, alleging violations of the overtime pro- visions of the Fair Labor Standards Act, 29 USC. §§ 201-219 (“FLSA”). The officers claimed various restric- tions on their meal periods rendered those periods com- pensable work time under the FLSA. The district court initially dismissed the case, and we reversed and re- manded for further development of the facts regarding the frequency and duration of interruptions during the meal periods. On remand, the district court granted the City’s motion for summary judgment, finding that the of- ficers’ meal periods were not compensable work time A-2 under the FLSA. This time around we affirm, but on dif- ferent grounds than the district court.? Section 7(a) of the FLSA requires employers to pay overtime to employees who work more than 40 hours in a workweek. 29 U.S.C. § 207(a). However, the FLSA allows public agencies engaged in law enforcement activ- ities to calculate overtime for law enforcement personnel based on a 28 day work period rather than the standard seven day period. 29 U.S.C. § 207(k). Under section 7(k), the departments must pay overtime only when employees have “tours of duty which in the gate exceed” 171 hours in a 28 day period. 29 U.S.C. § 207(kX1); 29 C.F.R. §§ 553.201(a), 553.230. The Chicago Police Department operates under section 7(k)’s exemption. Its officers work shifts of eigh. .nd-one-half hours, which include one un- paid half-hour meal period. The crux of this lawsuit is whether the officers’ half-hour meal period is work time which should count towards the 171 hour limit beyond which they must receive overtime pay.? William Leahy 1 This case represents four consolidated Or ehin Leahy v. City of Chicago (No. 95-2015), Alexander v. City of Chicago (No. 95-2016), Accosta v. City of Chicago (No. 95-2017), and Arkana v. City of Chicago (No. 95-2018). 2 Although FLSA does not define “work,” two regulations set out the circumstances in which meal periods may be excluded from the calculation of hours worked. First, 29 C.F.R. § 785.19a) pro- vides: (a) Bona fide meal periods. 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. . . . The employee is not relieved if he is re- quired 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. 29 C.F.R. § 785.1%a). 29 C.F.R. § 553.223(b), which applies to agen- cies that elect to use the § 7(k) exception, permits the exclusion (Footnote continued on following page) A-3 and nineteen other current and former Chicago police of- ficers initiated this action in state court in November 1989, claiming that the restrictions on their meal periods made those periods compensable work time under the FLSA. Those restrictions include: officers must receive permission from a dispatcher to take a meal period; of- ficers must receive permission from a supervisor to leave their assigned districts during meal periods; officers must remain in uniform and comply with various rules govern- ing conduct while in uniform; no more than two officers 2 continued of meal periods from the calculation of hours worked on tours of duty of 24 hours or less provided that the employee is completely relieved from duty during the meal period, and all the other tests in § 785.19 of this title are met. On the other hand, where law enforcement personnel are required to remain on call in barracks or similar quarters, or are e in extended surveillance activities (e.g., “stakeouts”), t ey are not considered to be completely re from duty, and any such meal periods would be com- pensable. 29 C.F.R. § 553.223(b). With these regulations in mind, we and other circuit courts have adopted the “predominant benefit” test for determining whether meal periods constitute compensable work time under the FLSA. See, e.g., Alexander, 994 F.2d at 337; Avery v. City of Talladega, 24 F.3d 1337, 1345 (11th Cir. 1994); Henson v. ki County Sheriff t., 6 F.3d 531, 534 (8th Cir. 1993); Lamon v. City of Shawnee, F.2d 1145, 1155-57 (10th Cir. 1992), cert. denied, 507 U.S. 972 (1993). An employee is considered to be completely re- lieved from duty during a meal — when the employee’s time is not yong predominantly for the benefit of the employer. Alezx- ander, F.2d at 337. The FLSA requires compensation for meal periods ~— which a police officer cannot comfortably and ade- quately spend the mealtime because the officer’s time or atten- tion is devoted primarily to official responsibilities. Lamon, 972 F.2d at 1155-56. If during meal periods a police officer’s time and attention are primarily occupied by a — nag tage cha cage the procurement and consumption of food, then the officer is com- pletely relieved from duty and is not entitled to compensation under the FLSA. Z7d. at 1157. A-4 may congregate during a meal period without prior per- mission; officers in two-person units must take their meals at the same time; officers must be available to end their meals upon request; officers must respond to emergencies and requests for assistance by the public; and officers must be available by radio to the dispatcher. The City moved for summary judgment on two grounds. First, the City contended that the Portal-to-Portal Act, 29 U.S.C. § 259, barred the suit because the police depart- ment had based its practice of exciuding the half-hour meal periods from compensable work time on a good faith reliance on a Department of Labor Letter Ruling. Second, the City asserted that the collective bargaining agreement between the City and the police officers declared that the officers’ meal periods are not compensable work time, and therefore served as a complete defense to the lawsuit. The district court rejected both grounds upon which the City based its motion, and instead granted summary judgment on the merits, finding that the restrictions on the officers and the interruptions during their meal periods did not make the meal periods compensable time under the FLSA. We review the district court’s summary judgment deter- mination de novo. The plaintiffs argue that the district court improperly granted summary judgment on the merits because dis- covery was not complete on the issue of the frequency and duration of interruptions during officers’ meal periods. The City concedes this, and therefore does not defend the district court’s reasoning. Instead, the City justifies the grant of judgment on a ground the district court rejected—that the collective bargaining agreement be- tween the City and the police officers satisfies the FLSA by providing that officers will receive overtime pay if they work a full eight hours and also work during their meal period. Both ies acknowledge that discovery was com- plete as to this issue. We agree that the collective bar- gaining agreement protects the plaintiffs’ rights to over- time compensation under the FLSA, and affirm the grant of summary judgment on that basis. Flynn v. Sandahl, 58 F.3d 283, 289 (7th Cir. 1995). F A-5 Collective Bargaining Agreement The Fraternal Order of Police (“FOP”) has acted as the collective bargaining representative of most Chicago police officers since 1979. During that time, the FOP and the City have entered into several collective bargaining agree- ments providing for fixed salaries for officers, as well as overtime pay at the rate of time-and-one-half for all hours worked in excess of eight hours in a day or 40 hours in a week. A memorandum of understanding attached to all of the collective bargaining agreements sets out certain benefits, including a half-hour meal period during each tour of duty. The collective bargaining agreements estab- lish a grievance procedure for disputes about the inter- pretation or application of the agreement, and provide for arbitration before a neutral party for those disputes not resolved during the grievance procedures. It is undisputed that the FOP never has filed a grievance asserting that the uncompensated half-hour meal period constitutes a breach of the collective bargaining agreement. Under the FLSA, employers and employees may make “reasonable provisions of contract [to guide] the computa- tion of work hours where precisely accurate computation is difficult or impossible” See Tennessee Coal, Iron & Railway Co. v. Muscoda Local No. 123, 321 U.S. 590, 603 (1944). See also Skidmore v. Swift & Co., 323 U.S. 134, 136-37 (1944); Bowers v. Remington Rand, Inc., 159 F.2d 114, 116 (7th Cir. 1946), cert. denied, 330 U.S. 843 (1947). This means that employers and employees may resolve whether certain activity is “work” through a collective b ini ment, as long as the ment comports with the F A. See Beaston v. Scotland Sch. for Veterans’ Children, 693 F. Supp. 234, 289 (M.D. Pa. 1988), affd, 869 F.2d 587 (3d Cir. 1989). Here, if the collective bargain- ing agreement’s guarantee of overtime compensation for time worked in excess of eight hours in an eight-and-one- half hour tour of duty protects Chicago police officers’ FLSA rights to overtime compensation, then the - ment is a defense to liability under the FLSA Be the plaintiffs’ suit cannot succeed. This makes perfect sense A-6 in situations where it is difficult to define precisely what constitutes working time. Here, the collective bargaining agreement provides that ‘“{ajll time in excess of the hours worked in a normal workday (8 hours) and the normal workweek (40 hours) shall be compensated” at the rate of time-and-one-half. If an officer works more than = hours, the officer is entitled to overtime pay. The Py ies’ agreement therefore assumes that generally an officer is not working during a meal period, but provides for appropriate compensation when an cfficer actually does work during the meal. In fact, as the City argues, the collective bargaining agree- ment actually is more generous than the FLSA, ehieh provides for overtime compensation only when an officer works more than 171 hours in a 28 day period. The district court found that the collective bargaining agreement did net specifically address whether meal periods were compensable work time, and therefore the agree- ment by itself could not support summary ayo age in favor of the City. In our previous opinion, which was based on a less developed record than we have here, we suggested in a footnote that the collective bargaining agreement was only one factor to consider in determining whether meal periods are compensable work time. Alez- ander, 994 F.2d at 339 n.11. However, upon further review, we conclude that the collective bargaining agree- ment can and does outright preclude the plaintiffs’ claim. The agreement clearly states that an officer is entitled to overtime rates for hours worked in excess of eight hours per day. If an officer works more than eight hours in a day as a result of working during a meal period, the City will pay overtime rates for the excess work time. The FLSA requires no more. Alexander, 994 F.2d at 345 (Bauer, C.J., dissenting). Indeed, the individual inquiry facilitated by the grievance process is the most efficient way to determine whether an officer’s meal period should be compensabie work time. The situation here—a police department of some 12,000 A-7 officers in different districts with different shift schedules and different exigencies arising each day that might af- fect officers’ meal periods—is not conducive to a one-shot solution. The officers want just such a solution: because some officers on some days miss all or part of their meal periods, the plaintiffs want all meal periods to be com- pensable work time. That would brook a result we can- not sanction, where officers might be paid for doing nothing more than eating during their meal periods. In- stead, we conclude that the collective bargaining provi- sion guaranteeing overtime pay to officers who work more than eight hours in a day compensates officers if they work during their meal periods, and therefore fully pro- tects the officers’ FLSA rights.* CONCLUSION For the foregoing reasons, we affirm the district court’s order granting the City’s motion for summary judgment. AFFIRMED. Cupany, Circuit Judge, dissenting: Judge Bauer, for the new majority, has done a skillful job of reviving and restating a substantial part of his dis- sent in the earlier appeal of this case, Alexander v. City of Chicago, 994 F.2d 333, 342 (7th Cir. 1993). In Alez- ander, we (or rather a fractionally different panel) refused to approve a judgment on the pleadings for the City on * Some of the plaintiffs are sergeants, who are not covered by the collective bargaining agreement because of their rank. ts receive one- hour of overtime compensation in addi- tion to eight hours of regular pay for each eight-and-one-half-hour tour of duty that they work. The tour of duty includes one half- hour meal period. pe gorge therefore work an eight-and-one-half hour tour of duty and get paid for eight-and-one- hours. The FLSA requires no more than this. A8 an undeveloped record like the one that is now before us. In that phase of the case, I wrote for the old major- ity and Judge Bauer dissented. The case and the issue to be resolved have not changed in any respect, but the mye has changed. And this 1s decisive. As a result the aw seems to have changed without so much as a nod of recognition by the new majority to the law of the case doctrine, which has been flagrantly violated here. This in itself is more than enough to compel rejection of the (new) majority opinion. The majority says here that the collective bargaining agreement can be a complete defense to a Fair Labor Standards Act claim when the agreement supplies a dis- positive definition of “work.”! The majority opinion in Alexander specifically rejected this approach: Although a fact finder might consider [a collective bargaining agreement] as one among many factors in determining whether the officers were completely relieved of duty, it certainly does not outright pre- clude the officers’ claim. Id. at 339 n.11. The present opinion is thus in total con- tradiction of Alexander, but comports closely with the analysis of Judge Bauer’s dissent in that earlier case. In his Alexander dissent, Judge Bauer asserted: Here, the City is bound by the collective bargaining agreement which requires that the Officers receive overtime rates when they work during their meal periods. The Officers do not allege that the City has breached the collective bargaining syria: and, ab- sent such an allegation, I assume that the City fully complies with its terms. Consequently the City pays the Officers if they work during their meal periods and does not pay them if they do not work during their meal periods. FLSA requires no more. 1 Here, of course, the agreement supplies no definition of “work.” si ciicaiaai ; A-9 Id. at 345. The adoption of this analysis by the present majority obviously disregards the law of the case. In order to deal at least cosmetically with this unseemly state of affairs, the majority opinion states that our pre- vious opinion “was based on a less developed record than we have here” and concludes that “upon further review, we conclude that the collective bargaining agreement can and does outright preclude the plaintiffs’ claim.” Maj. Op. at 6. Assuming that the majority recognizes the “pre- dominant benefit” test relied upon in Alexander, the con- clusion that the collective bargaining agreement alone can outright preclude the plaintiffs’ claim must imply that the required factual inquiry has been conducted and all of the facts other than the collective bargaining agreement have been shown to be inconsequential. This suggestion defies reality. The undeveloped—in fact, fragmentary—record now before us is in all relevant respects no different than the undeveloped record that confronted the Alexander panel. The record has not changed; only the composition of the panel has changed. All sides agree that discovery in this case is not complete. It is for this reason that the City concedes that Judge Marovich’s summary judgment on the merits cannot be affirmed for the reasons on which he relied. If discovery is not over, this court can hardly conclude that the collective bargaining agreement provides dispositive facts. Alexander clearly held that the predomi- nant benefit test could be applied only after the complete development of the relevant evidence.” The majority’s “further review” of the unchanged col- lective b ining agreement leads it to suggest (contrary to Alexa ) that the agreement is such an important factor that it makes all others pale into insignificance. The majority supports this suggestion by citing Tennessee Coal, Iron & Railway Co. v. Muscoda Local No. 123, 321 U.S. 590, 603 (1944), for the proposition that “employers 2 It is, of course, possible that summary judgment on the merits might be appropriate here after the completion of discovery. aise ficies, BD Nica? attnd cr vi Be iad HA > a - A-10 and employees may make ‘reasonable provisions of con- tract [to guide] the computation of work hours where pre- cisely accurate computation is difficult or impossible.’ ” Maj. Op. at 5. The majority negiects to point out, however, Tennessee Coal’s admonition that: The Fair Labor Standards Act was not designed to codify or perpetuate those customs and contracts which allow an employer to claim all of an employee’s time while compensating him for only part of it. Con- gress intended, naead to achieve a uniform national policy of guaranteeing compensation for all work or employment engaged in by employees covered by the Act. Any custom or contract falling short of that basic policy, like an agreement to pay less than the minimum wage requirements, cannot be utilized to deprive employees of their statutory rights. Id. at 602-03. In short, the FLSA establishes statutory rights which may not be contracted away. As the Supreme Const. tans tte “ . . congressio y granted LSA rights take precedence over conflicting provisions in a col- lectively bargained compensation agreement.” Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 740- 41 (1981). Thus, even if the collective bargaining agree- ment had explicitly defined the officers’ meal periods as non-compensable, an FLSA action could be sustained if the meal periods were actually for the predominant bene- fit of the employer. Here, of course, the collective bargaining agreement con- tains no such definition. In the district court, the City moved for summary judgment on the grounds that the collective bargaining agreement declared that the offi- cers’ meal a were not compensable work and there- fore served as a complete defense to the lawsuit. Judge Marovich rejected this position, finding that the collective bargaining agreement “fails to include any agreement re- garding the meal periods.” Dist. Ct. Op. at 11. This find- ing is obviously correct, and the majority has not sug- -—% Lt aon call A-1l gested anything in the agreement that would put it in doubt. Rather, the majority rests its case on the fact that, “The agreement clearly states that an officer is entitled to overtime rates for hours worked in excess of eight hours per day.” Maj. Op. at 6. This virtual truism hard- ly addresses the question now before us—whether officers’ meals involve “work.” In fact, the collective bargaining agreement has nothing to say on the issue before us, as the Alexander panel held and as Judge Marovich has sub- sequently found. The majority opinion would leave the determination of whether the officers’ meal periods constitute “work” to case-by-case grievance arbitration. In fact, the majority opinion seems to rest on nothing more substantial than the belief that such arbitration may be a better way to resolve the question than would litigation in federal court. However, there is no abstention doctrine that tells us to abstain in favor of an arbitrator. Nor is there any like doctrine of primary jurisdiction. In fact, the Supreme Court has held that a worker may pursue a remedy under the FLSA even after losing a grievance arbitration. Bar- rentine, 450 U.S. at 740 (“No exhaustion requirement or other procedural barriers are set up, and no other forum for enforcement of statutory rights is referred to or cre- ated by the statute.”). The issues that are before us have been successfully liti- gated by courts in a number of jurisdictions where griev- ance arbitration might have been an alternative means of resolving the issues. See, e.g., Lamon v. City of Shaw- nee, 972 F.2d 1145 (10th Cir. 1992), cert. denied 507 U.S. 972 (1993); Berry v. County of Sonoma, 30 F.3d 1174 (9th Cir. 1994), cert. denied 115 S. Ct. 1100 (1995); Hen- son v. Pulaski County Sheriff Dept., 6 F.3d 531 (8th Cir. 1993); Reich v. New York City Transit Authority, 45 F.3d 646 (2d Cir. 1995); Renfro v. City of Emporia, 948 F.2d 1529 (10th Cir. 1991), cert. denied 503 U.S. 915 (1992); Wahl v. City of Wichita, 725 F. Supp. 1133 (D. Kan. 1989). Wahl involved an agreement requiring that officers who worked in excess of 40 hours per week should receive | | A-12 overtime pay at the rate of one-and-one-half times their regular rate of pay. Wahl, 725 F. Supp. at 1136. Such provisions are presumably common in labor agreements throughout the country but do not resolve the compen- sability issue for FLSA purposes. The agreement did not resolve the issue in Wahl, and the City has cited no case where such a provision was conclusive on the question of compensability under the FLSA. See also, Berry, 30 F.3d at 1182 (collective bargaining agreement not disposi- tive); Reich, 45 F.3d at 647. In analyzing a question similar to that presented in the case before us (whether firefighters must be compensated for time spent on call), the Supreme Court noted the fact- specific nature of such determinations and the role which the employment agreement should play in the analysis. The Court stated: We have not attempted to, and we cannot, lay down a legal formula to resolve cases so varied in their facts as are the many situations in which employment involves waiting time. Whether in a concrete case such time falls within or without the Act is a ques- tion of fact to be resolved by appropriate findings of the trial court. This involves scrutiny and construc- tion of the agreements between the particular par- ties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service, and its relation to the waiting time, and all of the surrounding circumstances. Skidmore v. Swift & Co., 323 U.S. 134, 136-37 (1944) (cita- tions omitted). The fact that a collective bargaining agree- ment, rather than a simple employment contract, is in- volved here does not change this basic analysis. As the Court pointed out in Barrentine: In contrast to the Labor Management Relations Act, which was designed to minimize industrial strife and to improve working conditions by encouraging em- ployees to promote their interests collectively, the A-13 FLSA was designed to give specific minimum pro- tections to individual workers .... Barrentine, 450 U.S. at 739 (emphasis in original). Indeed, the assertion that merely by providing for over- time pay in its collective bargaining agreement an em- ployer may insulate itself from vo igg 3 Page scrutiny borders on the preposterous. Yet the majority’s opinion essentially boils down to just such an assertion. The majority also suggests that grievance arbitration would be more efficient than litigation under the FLSA in this case. The suggestion is apparently that allowing 12,000 officers to bring individual grievances about meal periods would be more efficient than would a decision about those periods under the FLSA. There might be rea- sons to prefer tens of thousands of individual grievance procedures over one lawsuit; but “efficiency” is not one of those reasons. Therefore, I respectfully dissent. A true Copy: Teste: Clerk of the United States Court of Appeals for the Seventh Circuit A-14 UNITED STATES COURT OF APPEALS For the Seventh Circuit Chicago, Illinois 60604 November 7, 1996. Before Hon. WILLIAM J. BAUER, Circuit Judge Hon. RicHarD D. Cupany, Cireuit Judge Hon. TERENCE T. EVANS, Circuit Judge DANIEL LEAHY, et al., Plaintiffs-Appellants, Nos. 95-2015, 95-2016, 95-2017, 95-2018 City OF CHICAGO, Defendant-Appellee. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 89 C 9354, 90 C 7284, 92 C 667, 94 C 2237—George M. Marovich, Judge. ORDER On consideration of the petition for rehearing with sug- gestion for rehearing en banc filed in the above-captioned case by plaintiffs-appellants and the answer filed by the defendant-appellee, no judge in active service has re- A-15 quested a vote thereon, and a majority of the judges on the original panel have voted to deny.* Therefore, the petition for rehearing with suggestion for rehearing en banc is hereby denied. * The Honorable Joel M. Flaum did not participate in the consid- eration of the petition for rehearing en banc. OA ener RAG INID . B-1 APPENDIX B [Dated March 28, 1995] IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION IN RE: ) ) Hon. George Marovich CHICAGO POLICE DEPARTMENT ) 89C 9354 F.L.S.A. MEAL PERIOD ) 90C 7294 LITIGATION ) 92C 667 ) 94C 2237 MEMORANDUM OPINION AND ORDER Chicago police officers (“Officers”) have filed suits against the City of Chicago (“City”) alleging violations of the overtime provision of the Fair Labor Standards Act of 1938 (“FLSA”) because of various restrictions placed upon their meal period. The Officers claim that these restrictions render their meal period compensable under the FLSA. The Officers filed four cases against the City. Leahy v. City of Chicago, 89 C 9354 was brought as a representative action, with over 5,500 police officers opting into it. Alexander v. City of Chicago, 90 C 7294, Accosta v. City of Chicago, 92 C 667, and Arkana v. City of Chicago, 94 C 2237, were filed as individual actions. Approximately 173 additional plaintiffs were named in Alexander, 1621 in Accosta, and 309 in Arkana. All four cases were consolidated for purposes of discovery and dis- positive motions and are referred to as captioned above. This Court granted judgment on the pleadings for the City in holding that the Officers’ meal period was not compensable work time under the FLSA, and the plain- B-2 tiffs appealed. The Seventh Circuit reversed and remand- ed holding that the allegations in the Officers’ complaints were sufficient to raise a viable claim, the merits of which could not be resolved as a matter of law on the limited facts available. This action is before this District Court. Discovery is complete and the City moved for summary judgment. The City alleges that the Portal-to- Portal Act, 29 U.S.C. § 259 (“Portal Act”) is a bar to the Officers’ action, and that a collective bargaining agree- ment beiween the City and the Officers declares that the Officers’ meal period is not compensable work time. For the reasons set forth below, we grant the City’s motion for summary judgment. LOCAL RULE 12 In this district, Local Rules 12(m) and 12(n) require the parties moving for and opposing summary judgment under Rule 56 of the Federal Rules of Civil Procedure to state the material facts of the case. Local Rule 12(m) requires the moving party to provide a supporting memo- randum of law, including a statement of material facts as to which that party contends there is no genuine issue and which entitles that party to summary judgment as a matter of law. The movant is required to set each fact in a short numbered paragraph and include a specific reference to the record to support that fact. Local Rule 12(n) requires the party opposing summary judgment to submit a supporting memorandum of jaw, including a supporting statement responding to each numbered paragraph in the movant’s statement of ma- terial facts. The party opposing summary judgment must state any disagreement to the material facts set forth by 5 Y b ; 4 x 3 > 4 ‘A 3 i | § - 4 z ¥ : y B-3 the moving party. If the party opposing summary judg- ment fails to state any disagreement with the facts set forth in the movant’s statement, these facts are deemed admitted. These requirements have been strictly enforced in this district. See Pasant v. Jackson Nat'l Life Ins. Co., 768 F. Supp. 661, 663 (N.D. Ill. 1991); Davis v. Frapolly, 756 F. Supp. 1065, 1069-70 (N.D. Ill. 1991), and in the Court of Appeals. See Brown v. United States, 976 F.2d 1104, 1108 (7th Cir. 1992); Capitol Converting Equip., Inc. v. LEP Transp., Inc., 965 F.2d 391, 294-95 (7th Cir. 1992); Bell, Boyd and Lloyd v. Tapy, 896 F.2d 1101, 1103 (7th Cir. 1990). The following statement of facts is drawn from a care- ful consideration of the City’s Motion for Summary Judg- ment, its 12(m) statement and the Officers’ 12(n) state- ment, and the record of this case. BACKGROUND The Officers are past and present members of the Chicago Police Department (“CPD”) assigned to the patrol and traffic divisions. All sworn CPD members may be divided into three broad categories: 1) those who are not assigned to field duties and who generally are assigned to an eight hour tour of duty; 2) those who are assigned to field duties and primarily receive their assignments from the CPD’s communications system via radio; and 3) those who are assigned to field duties but generally do not receive assignments via the CPD’s com- munications system.’ 1 We will address those sworn members of the CPD who are assigned to field duties and receive their assignments via (continued...) B-4 All personnel who are assigned to field duties are scheduled for eight and one half hour tours of duty, including a one half hour uncompensated meal period. The Officers filed suit charging that the City’s failure to compensate them for their meal period violates the FLSA. The Officers claim that the restrictions that the City places upon their meal period render the meal period compensable under the FLSA. Specifically, the Officers claim that they are restricted during their meal breaks in the following ways: 1. Officers must respond to requests for assistance or information from members of the public. Officers are recognizable to the public because the officers are required to carry their service weapons and remain in full uniform, if on uniform duty. 2. Officers (patrol officers) are required to remain within the district and/or sector of assignment unless prior permission to leave such area is granted by a supervisor. 3. Officers are required to adhere to all regulations concerning conduct while in uniform, i.e., officers must refrain from congregating (no more than two officers may be present in the same establishment without prior permission); officers must refrain from the consumption of alcoholic beverages; officers must ' (...continued) radio. We will not address those sworn members of the CPD who are assigned to field duties but do not receive their assignments via CPD’s communications system because it is undisputed that this group has fewer restrictions placed upon their meal period than those receiving assignments via radio. We will not address those sworn members of the CPD who are not assigned to field duties because they are supervisory per- sonnel who automatically receive one half hour of automatic overtime pay for each tour of duty. Rae Sern t 5 SP. valine IS Eee et APT PAPO PE TCR SO St NT ce rT De RR ee aR B-5 refrain from conduct deemed by the CPD to be inap- propriate or tending to reflect poorly upon the uni- form. 4. a) Officers who have assigned portable radio units must maintain the radio units with them and remain in radio contact and respond to both calls for information and calls regarding police emergencies on such radios. b) Officers not assigned to portable radio units must spend their meal period at a location where they can be reached by telephone, must provide the dispatcher with the telephone number and must respond to calls or requests for information on such telephones. 5. Officers must receive permission from the dis- patcher to take a meal period, and such permission may be and frequently is denied depending upon the workload of the district and the availability of other police officers to respond to calls. We will first address the City’s Portal Act defense. Next, we will address the City’s collective bargaining agreement defense. Finally, we will address whether the restrictions placed upon the Officers’ meal period render the meal period compensable overtime under the FLSA. DISCUSSION Summary judgment is appropriate only when the nleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, present no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. KR. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322- 323 (1986). On issues where the nonmovant bears the B-6 ultimate burden of proof, he must present definite, competent evidence to rebut the motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-257 (1986). Sum- mary judgment is granted only when the record reveals that no reasonable jury could find for the non-moving party. Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 335 (7th Cir. 1991). In ruling on a summary judgment motion, the court “must construe the facts alleged in the light most favorable to the party opposing the motion for summary judgment.” Stumph v. Thomas & Skinner, Inc., 770 F.2d 93, 97 (7th Cir. 1985) (quoting Janowiak v. City of South Bend, 750 F.2d 557, 559 (7th Cir. 1984). A. Portal Act Defense The City contends that it is entitled to summary judg- ment because the Portal Act is a per se bar to the Offi- cers’ action. The Portal Act provides in relevant part: . .. no employer shall be subject to any liability or punishment for or on account of the failure of the employer to pay minimum wages or overtime com- pensation under the Fair Labor Standards Act of 1938, as amended, . . . if he pleads and proves that the act or omission complained of was in good faith[,] in conformity with[,] and in reliance on any written administration regulation, order, ruling, approval, or interpretation of [the Administrator of the Wage and Hour Division of the Department of Labor] . . . Such a defense, if established, shall be a bar to the act or proceeding, notwithstanding that after such act or omission, such administrative regulation, order, rul- ing, approval, interpretation, practice, or enforcement policy is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect. EAGLE SS SO FERS ei To" ape en te LS RMON aa ALA SNIIRS AL a OLR ES ERG CS Sot CRS aR Posies bial ie Sete a ta hie eee 8 4 : — d 4 § a ¥ % 1 im . - h B-7 Thus, the Portal Act insulates an employer from liability under the FLSA if the employer acted on the basis of a government agency’s interpretation of law, even if the agency’s interpretation later turns out to be wrong. Equal Employment Opportunity Comm'n v. Home Ins. Co., 672 F.2d 252, 263 (2d Cir. 1982). To establish the Portal Act defense, employers must prove three interre- - lated elements: (1) that their action was taken in reli- ance on a ruling of the Administrator of the Wage and Hour Division of the Department of Labor; (2) that their action was in conformity with that ruling; and (3) that their action was in good faith. Cole v. Farm Fresh Poultry, Inc., 824 F.2d 923, 926 (11th Cir. 1987); Equal Employment Opportunity Comm'n, 672 F.2d at 263. The City asserts that the Portal Act is a per se bar to the Officers’ action because the CPD’s long-standing practice of excluding one-half hour meal periods from compensable work time is based upon a good faith re- liance on a Department of Labor Letter Ruling. We begin our analysis of the City’s Portal Act defense with an inquiry into a series of alleged CPD daily meetings which occurred throughout the summer and fall of 1985. The regular participants of these me>tings were James Sazama, a CPD lieutenant presently assigned as an In- spector in the Auditing and Internal Control Division (“Sazama”); William Alexander, a CPD lieutenant pres- ently assigned as an Inspector in the Auditing and Inter- nal Control Division (“Alexander”); and Gary Clark, a CPD patrol officer presently assigned as Manager of Police Payroll in the Finance Division (“Clark”). Sazama, Alexander, and Clark (“the small group”) met to review the CPD policies, practices, and procedures in light of Garcia v. San Antonio Metro. Transit Auth., 469 U.S. B-8 528, 533 (1985), which made the FLSA applicable to state and local government. Periodically, the small group met with a larger committee headed by Dennis Nowicki, then-Deputy Superintendent of the CPD, to analyze the CPD policies, practices, and procedures. In addressing the impact of Garcia on the CPD, the small group claims to have analyzed the CPD’s meal policy according to a Los Angeles Department of Labor Letter Rule (“Letter Ruling”). This Letter Ruling ad- dressed the question of whether the meal period of uniformed officers in Los Angeles could be treated as non-compensable time under FLSA. The small group allegedly determined that based on the three-part test of the Letter Ruling, the CPD need not compensate the Officers’ meal periods for the following reasons: (1) one- half hour is a sufficiently long meal period; (2) the meal periods are taken at suitable times during the tour of duty; and (3) the Officers have no duties to perform during times they are not being compensated because, in the event that an officer is called upon to perform police work during a meal period, that officer is entitled to an extended meal period, another meal period, or overtime compensation if the interrupted meal cannot be made up. Those in the small group also determined that based on their personal experiences, citizen interruptions as refer- enced in the Letter Ruling are infrequent and brief. Fur- ther, the small group allegedly met with the larger com- mittee which concurred with every aspect of the small group’s comparison of the Letter Ruling to the CPD meal period policy. Unfortunately, the CPD’s file regarding the effect of the FLSA on CPD policies and procedures has been de- stroyed in accordance with the CPD record retention Ie ptaltetin Sas UI (lied dated daa ole oe ee Gas Wad ett sea Pe ee ae Bae MOAI a Aa HN Ce EES Pir dis eo) eee B-9 schedule. Oddly enough, not one member of the small group has any recollection of exactly what was covered at any particular meeting; whether any written documents were generated at these meetings; what anyone said; or who was at the “larger committee meetings.” The Offi- cers argue that the small group failed to fully analyze the CPD’s meal period policy under the three-part test of the Letter Ruling. Specifically, the Officers assert that the Letter Ruling did not provide a clear answer to the particular situation of the CPD Officers’ meal period and that “good faith reliance” is a material fact question. The Officers also maintain that the conclusions of Alexander, Sazama, and Clark and the concurrence of the larger committee are insufficient to establish that the CPD meal period policy is in conformity with the Letter Rul- ing. To be successful under the Portal Act defense, the City must prove that it relied on the Letter Ruling; that its action was in conformity with that ruling; and that its action was in good faith. Because the small group is unable to recall any details of the alleged numerous meetings, we are unable to assess whether the City even relied on the Letter Ruling in analyzing its meal period policy, much less whether the City’s action was in good faith. We have no set of facts on which to conclude that the small group adequately evaluated the Letter Ruling. Because we cannot say, as a matter of law, that the City relied in good faith on the Letter Ruling, we cannot find that the Portal Act defense applies here. We turn to the next defense, which is the collective bargaining issue, to determine if this dispute has already been resolved be- tween the parties and is incorporated in the collective bargaining agreement. B-10 B. Collective Bargaining Agreement The City argues that it is entitled to summary judg- ment because the City and the Officers, through arms’ length negotiations, have agreed that the Officers’ meal period is not compensable work time. Under the FLSA, employers and employees may make “reasonable provi- sions of contract or custom” that govern the computation of work hours where precisely accurate computation is difficult, or where there is substantial question as to whether certain activity or non-activity is “work.” Ten- nessee Coal, Iron & Railway Co. v. Muscoda Local No. 123, 321 U.S. 590, 602 (1944). Thus, employers and employees may resolve the question of whether certain activity or non-activity is “work” under the FLSA through a written collective bargaining agreement. Beaston v. Scotland Sch. for Veterans’ Children, 693 F. Supp. 234, 239 (M.D. Pa. 1988), aff'd, 869 F.2d 587 (3d Cir. 1989); General Elec. Co. v. Porter, 208 F.2d 805, 814 (9th Cir. 1953), cert. denied, 347 U.S. 951 (1954); Bowers v. Remington Rand, Inc., 159 F.2d 114, 116 (7th Cir. 1946), cert. denied, 330 U.S. 843 (1947); Tennessee Coal, Iron & Railway Co., 321 U.S. at 602. Furthermore, in determining what constitutes “work” under the FLSA, courts are obligated to ascertain whether the parties have reached an express or implied agreement on the matter. Skidmore v. Swift & Co., 323 U.S. 134, 137 (1944). The City argues that beginning with the parties’ first contract negotiations in 1981 and continuing through the parties’ fifth and final contract negotiations in 1991, the City and the Fraternal Order of Police (“FOP”) agreed to an uncompensated meal period. The City supports this contention by pointing to the fact that the FOP repeated- eo ee ee ee ah ce ge it 4 4 R 4 > Z vol ‘3 + & #4, = # ad mJ az8 i = ; re B-11 ly dropped its proposals for paid meal periods; therefore, the FOP agreed that the meal period was not compensa- ble. The City also points to numerous benefits that the FOP successfully bargained for during the contract nego- tiations. The Officers maintain that the FOP never explicitly agreed to the uncompensated meal period during any one of these five contract negotiations. In fact, the Officers assert that although the FOP repeatedly proposed that the Officers’ meal period be compensable, the parties never even discussed the restrictions on the officers’ meal period. The Officers argue that the FOP “did not want to take a hard position that might result in the entire elimination of the meal period.” Of course, our starting point must be the collective bargaining agreement itself; and that document fails to include any agreement regarding the meal periods. In order to determine whether an implied agreement exists between the parties in the absence of this express agree- ment, we must look to the intent of the parties and the circumstances surrounding the agreement. Upon exami- nation of the competing and divergent views of the FOP’s abandonment of the meal period issue, it becomes evi- dent that a disputed issue of fact exists as to whether this issue was encompassed in the collective bargaining agreement. However, even in light of this disputed fac- tual issue, the court must still examine the FLSA and determine whether relief can be granted under the cir- cumstances. C. Compensability of Meal Period The FLSA requires employers to pay overtime to employees who work more than forty hours per week. B-12 | § 207(a). However, § 207(k) creates an exception to the standard wage and hour provisions of the FLSA (“§ 7(k)” exception). Under § 7(k) public law enforcement and fire departments may declare work periods from seven to twenty-eight consecutive days. Employees working with- in a twenty-eight day work period are entitled to over- time if they work in excess of 171 hours within that period. The City has elected to pay the Officers on the basis of a twenty-eight day work period, and the parties agree that if the Officers work more than 171 hours within that period, they are entitled to overtime pay. The sole issue remaining before us is whether the Officers’ meal period is work time which should be included with- in the 171 hour calculation. Although the FLSA does not define “work,” two FLSA regulations set out the circumstances in which meal periods may be excluded from hours worked. First, 19 C.F.R. § 785.19(a) provides: (a) Bona fide meal periods. Bona fide meal periods are not work time. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely re- lieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes 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 ex- ample, 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. 19 C.F.R. § 785.19(a). Second, for those agencies using the § 7(k) exception, 29 C.F.R. § 553.223(b) provides that mealtime may be ex- B-13 cluded from hours worked on tours of duty of less than 24 hours provided that the employee is completely relieved from duty during the meal period, and all the other tests in § 785.19 of this title are met. On the other hand, where law enforcement personnel are required to remain on call in barracks or similar quarters, or are engaged in extended surveillance activities (e.g., “stakeouts”), they are not considered to be completely relieved from duty, and any such meal periods would be compensable. 29 C.F.R. § 553.223(b). Both of these regulations contain the same “completely relieved of duty standard” yet use extremely different examples to describe when an employee is not completely relieved of duty. However, the “completely relieved of duty standard” is not necessarily different for each sec- tion. Rather, a law enforcement employee is “completely relieved of duty” during a meal period when the em- ployee’s time is not spent predominantly for the benefit of the employer. In other words, “FLSA requires remu- neration for meal periods during which a police officer is unable comfortably and adequately to pass the mealtime because the officer’s time or attention is devoted primari- ly to official responsibilities.” Alexander v. City of Chica- 80, 994 F.2d 333, 337 (7th Cir. 1993) (citing Lamon v. City of Shawnee, 972 F.2d 1145, 1157 (10th Cir. 1992), cert. denied, 113 S. Ct. 1414 (1993)). See also Avery v. City of Talladega, 24 F.3d 1337, 1345 (11th Cir. 1994) (adopting Lamon standard); Henson v. Pulaski County Sheriff Dept., 6 F.3d 531, 534 (8th Cir. 1993) (adopting Lamon standard). Therefore, the Lamon standard will govern our assessment of whether the Officers’ meal period is work time which should be included within the 171 hour calculation. B-14 For purposes of our analysis, we will assume that all of the restrictions that the Officers claim are placed upon their meal period are true, and we will address each restriction in turn. First, the Officers claim that their meal period is restricted because they must respond to requests for assistance or information from members of the public. The Officers assert that they are easily recog- nizable to the public because the officers are required to carry their service weapons and remain in full uniform, if on uniform duty. The Officers maintain that the inter- ruptions from citizens last anywhere from a few minutes to a total disruption of the meal period and occur on the average between 30-40% of the time.” The Officers gen- erally cite the following as examples of citizen interrup- tions: requests for directions, requests for traffic ticket information, requests for general information, reports of disturbances or fights, and comments on community problems. This situation is analogous to the situation in Albee v. Village of Bartlett, 861 F. Supp. 680, 685 (N.D. Ill. 1994). The officers in Albee claimed that their meal period should be compensable under the FLSA because the meal period was only occasionally interrupted by questions from civilians. The court focused on the short duration of the citizen interruptions in determining that the officers had not been “badgered by civilians to the extent that * The Officers’ Affidavits, Group Ex. 1, 2, and 3 assert that citizen interruptions last anywhere from a few minutes to a total disruption of the meal period and occur between 10-80% of the time. Based on these 240 affidavits, we have calculated that the citizen interruptions occur on the average between 30- 40% of the time. Accordingly, we will refer to the frequency of citizen interruptions as occurring between 30-40% of the time. B-15 their meal period was not their own.” Id. at 685-86. See Alexander, 994 F.2d at 341 (Crabb, J., concurring) (the frequency of interruptions rather than the possibility of interruptions determines whether officers’ attention is devoted primarily to official responsibilities during meal periods). Further, the court held that the officers’ meals are not compensable because civilian interruptions are largely a function of where law enforcement employees choose to take their meals. Jd. at 685. For example, em- ployees who pick locations at the center of town are more likely to be approached by civilians. Jd. at 686. Other circuits have also resolved this issue against the officers. The Tenth Circuit found that officers’ responsi- bility to respond to citizen inquiries does not render a meal period compensable because “(t]hat a police officer is on-call and has some limited responsibilities during meal periods does not perforce mean the officer is work- ing.” Armitage v. City of Emporia, 982 F.2d 430, 432 (10th Cir. 1992) (citing Lamon, 972 F.2d at 1157). The Eighth Circuit concluded that the possibility that citizens may ask officers questions during meal periods does not render the meal periods predominantly for the benefit of the employer. Henson, 6 F.3d at 536. See also Bagrowski v. Maryland Port Auth., 845 F. Supp. 1116, 1120 (D. Md. 1994) (occasional citizen inquiries during meal period does not mean that officers were primarily engaged in work-related activities), Moreover, the fact that officers must remain in uniform during their meal period makes no difference. By the nature of their job, officers must be able to respond to emergencies without the delay of changing back into the required uniform. Albee, 861 F. Supp. at 688. Accord Avery, 24 F.3d at 1347; City of Univ. Park v. University Park Police Ass’n, 766 S.W.2d 531, 532 (Tex. Ct. App. 1989). B-16 We conclude that the requirement that Officers re- spond to citizen inquiries during a meal period does not render their meal period compensable under the FLSA. The interruptions from citizens could last only a few minutes, and the interruptions allegedly occur on the average only between 30-40% of the time. The frequency and extent of these alleged interruptions does not lead us to the conclusion that the Officers are badgered by civilians to the extent that their meal period is not their own. Thus, the Officers are not engaged in work-related duties during their meal period simply because they must respond to citizen inquiries. Such a conclusion could lead to the following absurd result: an officer enters a restaurant and spends thirty seconds pointing a civilian in the right direction; the officer is then com- pensated for the entire thirty minutes of the meal period. We decline to accept this logic and find that citizen in- terruptions do not transform the Officers’ meal period into time spent for the predominant benefit of the City. Moreover, we find that the Officers’ requirement to remain in uniform makes no difference. Critical to police work is the ability to respond to emergency situations. The time-consuming task of changing back into the required uniform after a meal period would thwart this ability. Therefore, these restrictions do not render the Officers’ meal period compensable under the FLSA. Second, Officers are required to remain within their district and/or sector of assignment unless prior permis- sion to leave the area is granted by a supervisor. Ad- dressing this very issue, the Eleventh Circuit concluded that no reasonable jury could find that officers’ meal periods are spent predominantly for the benefit of the City notwithstanding the restriction on officers to remain within their jurisdiction during their meal periods. Avery, yea. Sep oes a Se Se all all B-17 24 F. 3d at 1347. Accord Bagrowski, 845 F. Supp. at 1120 n.4. Similarly, in Albee, the court concluded that “there is no substance to the objection that officers are not permitted to leave town during their half-hour breaks.” 861 F. Supp. at 688. Accord City of Univ. Park, 766 S.W.2d at 532. We are unable to imagine why the Officers would be unable comfortably and, adequately to pass their meal- time at a restaurant within their own jurisdiction. Fur- thermore, this restriction does not require the Officers to devote either their time or their attention to official responsibilities. We conclude that even Officers who must eat at restaurants within their own jurisdiction are fully able to devote their time and attention to satisfying their appetite. Therefore, the Officers’ obligation to re- main within their district and/or sector does not render their meal period compensable under the FLSA. Third, Officers are required to adhere to all regulations concerning conduct while in uniform, 1.e., officers must refrain from congregating, which is defined that no more than two officers may be present in the same establish- ment without prior permissicn; officers must refrain from the consumption of alcoholic beverages; officers must refrain from conduct deemed by the CPD to be inappro- priate or tending to reflect poorly upon the uniform. These restrictions are comparable to the restrictions in Armitage, 982 F.2d at 431. The detectives in Armitage were not allowed to con- sume alcohol during lunch and were required to act in a professional manner toward the public. Jd. Nevertheless, relying on the Lamon standard, the Tenth Circuit con- cluded that the detectives were not primarily engaged in work-related duties during their meal period. Jd. Similar- B-18 ly, in Albee, the officers complained that they usually could not take lunch with another officer. 861 F. Supp. at 688. However, the court concluded that this limitation is inherently compelled by the limited numbers of police department personnel and by the need to have some personnel on active duty at all times. Jd. Remaining sober and professional during lunch does not merit compensation under the FLSA. We find that these requirements in no way force the Officers to devote their time and attention to official responsibilities. The City inevitably benefits from employing sober and pro- fessional officers, yet it does not follow that the Officers’ meal period is predominantly for the City’s benefit. We find that such restrictions do not convert the Officers’ meal time into work time under the FLSA. Fourth, Officers who have assigned portable radio units must mairitain the radio units with them, remain in radio contact, and respond to both calls for information and calls regarding police emergencies. Officers not as- signed to portable radio units must spend their meal period at a location where they can be reached by tele- phone, must provide the dispatcher the telephone num- ber, and must respond to calls or requests for informa- tion. The Eleventh Circuit addressed identical restric- tions in Avery, 24 F.3d at 1347. The court found that neither the officers’ responsibility to leave their radios on during lunch nor the detectives’ responsibility to leave a telephone number where they may be reached during lunch inhibits these employees’ ability to “comfortably and adequately pass the mealtime.” Jd. at 1347 (citing Lamon, 972 F.2d at 1158). The Eight Circuit also ad- dressed this restriction in Henson, 6 F.3d at 536. The court determined that the officers’ responsibility to monitor their radios during lunch did not mean that the B-19 officers spent their meal breaks predominantly for the benefit of their employer. Accord Lamon, 972 F.2d at 1157; Albee, 861 F. Supp. at 686; Bagrowski, 845 F. Supp. at 1120. Being on-call does not make meal time work time. The Officers are fully able to “comfortably and adequately pass the mealtime” even with their radios on. While the City may benefit from having the Officers available to respond to potential police emergencies, this restriction is not for the predominant benefit of the City. In fact, the City alleges that this restriction is for the benefit of the Officers. For exampLe, the dispatcher may need to con- tact an officer regarding a family or personal emergency. Regardless, it is undisputed that if an officer is called to duty via radio or phone during meal period and misses the entire meal period, then the City must compensate the officer.’ If the Officers do not work, they do not get paid. If the Officers work, they get paid. We find this policy to be logical. Thus, we conclude that the Officers’ alleged requirement to remain in either radio or tele- phone contact does not render the Officers’ meal periods compensable under the FLSA.‘ * The Officers allege that they are discouraged from reporting a missed or interrupted meal period. However, the City has referenced a number of grievances that the Officers have filed regarding missed meal periods. Moreover, we will not fault the City for an officer’s individual decision not to file a grievance for a missed meal period. See Albee, 861 F. Supp. at 686 (City not responsible for ensuring that officers submit overtime cards for a missed meal period). * Fifth, the Officers must receive permission from the dis- patcher to take a meal period, and allegedly such permission may be and frequently is denied depending upon the workload of the district. We need not address this issue because it is (continued...) B-20 The trend is clear. Notwithstanding restrictions on meal periods, meal time is not work time under the FLSA unless the employees’ time is spent predominantly for the benefit of the employer. As referenced by the preceding case law, even looking at the totality of the restrictions placed upon the Officers’ meal period, we do not find that the Officers’ meal period is predominantly for the benefit of the City. In sum, no reasonable fact- finder could find from the evidence presented that the Officers are primarily engaged in work-related activities during their meal period. Accordingly, the Officers’ meal period is not compensable under the FLSA. Therefore, summary judgment for the City is appropriate. 7 CONCLUSION Defendant’s motion for summary judgment is granted. ENTER: /s/ George M. Marovich GEORGE M. MAROVICH UNITED STATES DISTRICT JUDGE DATED: March 28, 1995 * (...continued) undisputed that if an officer misses an entire meal period, then the City must compensate the Officer. Moreover, the re- quirement to receive permission from a dispatcher precedes the Officers’ meal period; it is not a restriction during the meal period. Because dispatchers monitor police officers’ assign- ments, this requirement is compelled by the very nature of the police work. eae ee ee mT C-1 APPENDIX C IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Nos. 92-1441, 92-1442 & 92-1448 JULIE ALEXANDER, CARMEL G. ABBATE, BoZEMAN ANDERSON, et al., Plaintiffs-Appellants, Vv. City oF CHICAGO, a municipal corporation, Defendant-Appellee. Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 90 C 7294, 89 C 9354 & 92 C 667—George M. Marovich, Judge. ARGUED NOVEMBER 9, 1992—DecipEp May 12, 1993 Before BAUER, Chief Judge, CuDaHy, Circuit Judge, and Crass, District Judge.* CupDaHy, Circuit Judge. A group of Chicago police of- ficers alleged that the extent of the restrictions applied to their half-hour meal breaks required that they be com- pensated for such breaks under the Fair Labor Standards Act, 29 U.S.C. §§ 200-219. The district court granted the City’s motion for judgment on the pleadings in the first of three related cases and subsequently dismissed the com- panion cases. The officers appeal. We reverse. * The Honorable Barbara B. Crabb, Chief a of the United States District Court for the Western District of isconsin, is sit- ting by designation. C-2 I. Under section 7(a) of the Fair Labor Standards Act (FLSA), employers must pay overtime to employees who work more than forty hours weekly. 29 U.S.C. § 207(a). An exception to that provision, embodied in section 7(k) of the FLSA, 29 U.S.C. § 207(k), allows public law enforce- ment and fire departments to declare work periods from seven to 28 consecutive days; under that scheme, employ- ees working within a 28-day work period are entitled to overtime if they work more than 171 hours. The City of Chicago, which has elected to use the permitted exemp- tion, allows its police officers overtime at time and a half of their pay for any hours over 171 in a 28-day period. The officers work shifts of 8.5 hours, which includes one uncompensated half-hour meal period. Twenty current and former Chicago police officers ini- tiated this action in state court in November 1989 alleging that the rules and restrictions Pag to their half-hour meal periods necessitated that periods be counted as compensable hours within the tour of duty pursuant to the FLSA. Leahy v. City of Chicago, 785 F. Supp. 724 (N.D. Ill. 1992). Specifically, the plaintiffs’ complaint puts forth an ex- tensive list of requirements to which the officers must adhere during their meal breaks: officers must receive permission—frequently denied—to take a meal period, and cannot take that period during the last hour of a shift assignment; they must remain within their district; they must remain in full uniform while adhering to myriad reg- ulations regarding conduct while in uniform; officers are not permitted to take meals at locations other than estab- lishments serving food and those in two-person units must take meals together; officers must be available to termi- nate their meals upon request; no more than two officers may be present in the same establishment; officers must refrain from conduct that the department deems inappro- priate for an officer, apparently including playing golf, - | ical ial 2 C-3 reading nondepartmental publications, resting and napping; officers must refrain from drinking alcohol; they must re- spond to emergencies and requests for assistance by the public; and they must either spend the riod where they can be reached by phone, or, i amloned to portable units, keep the units with them. Officers also are subject to re- Med cirveetey CY inspectors during meal periods. In lim- ited circumstances, officers can request prior permission to disregard some of the above-noted restrictions, such as that prohibiting more than two officers from eating at the same place. The action was removed to federal court and about 5,600 other police officers joined the original plaintiffs in the first case, Leahy v. City of Chicago, 785 F. Supp. 724 (N.D. Ill. 1992). Others who missed the cutoff date for joining the action filed separate complaints in Alexander v. City of Chicago and Accosta v. ity of Chicago. The complaints allege the same restrictions; amended complaints in the Alexander and Accosta actions also allege that re- quests by the public for assistance and information and interruptions by supervisors and inspectors occur regularly and frequently. The City moved in the Leahy case for judgment on the leadings pursuant to Federal Rule of Civil Procedure 12(c). e district court granted the City’s motion for judgment on the pleadings and then granted the City’s motions to dismiss the Alexander and Accosta complaints for failure to state a claim. This appeal consolidates the three sepa- rate cases. IT. We review de novo the district court’s order granting the motion for judgment on the pleadings. There remains some confusion, however, regarding the nature of the dis- trict court’s inquiry—that is, whether the case is governed by the standard for motions to dismiss or should instead C-4 be treated as a motion for summary judgment.! In United States v. Wood, 925 F.2d 1580 (7th Cir. 1991), this court held, seemingly without qualification, that a 12(c) motion for judgment on the pleadings is subject to the same stan- dard as a rule 12(bX6) motion to dismiss. Jd. at 1581. In that event, the district court, viewing all facts in a light most favorable to the non-moving party, may grant the motion only if “it is beyond doubt that the non-movant can plead no facts that would support his claim for relief.” Id. (citing Thomason v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir. 1989)); Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The district court may not look beyond the pleadings, and all uncontested allegations to which the ~ adeng had an opportunity to respond are taken as true. Wood, 925 F.2d at 1581. The defendant counters that judgment on the gee on is, in the context of this case, more like summary ment than like a motion to dismiss. Notwithstandi tanding Wood 2 there may be some validity to this argument. In ational Fidelity Life Insurance Co. v. Karaganis, 811 F.2d 357 (7th Cir. 1987), this court required a party moving for judgment on the pleadings to establish that there were no material issues of fact to be resolved and that it was entitled to judgment as a matter of law. Jd. at 358; see 1 The district court may have found rule 12(c)’s application per- plexing as well; its original meek -_ to be ss to indicate the correct motion it was City of Chicago, No. 89 C 9354, 982 USS Dit tans 265 et “18 OD. Ill. Jan. 9, 1992) (granting “motion for summary ee with Leahy v. City of Chicago, 785 F. Supp. 724, 730 (N.D. Ill . 1992) (granting “motion for judgment on the pleadings”). 2 The City argues that the Wood court did not intend to work any in the law governing rule 12(c) motions. See Defen- dant’s Br. at 16 n.4. Indeed, the case that the Wood court cites as authority for its statement the use of the 12(bX6) standard— Saco Nachtrieb, 888 F.2d 1202, 1204 (7th Cir. 1989)—clearly limited the application of the standard for motions to dismiss in rule 12(c) cases to situations in which the movant specifically asserted 12(b) defenses. /d.; see also discussion infra. UE de = C-5 also 5A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 1368 at 530 (1990) (noting that courts will not grant a rule 12(c) motion if a material is- sue of fact exists); id. § 1369 at 535 (stating that the stan- dard courts apply for summary judgment and for judgment on the pleadings “appears to be identical”), A defendant may use a rule 12(c) motion after the close of the pleadings to raise various rule 12(b) defenses re- garding procedural defects, in .which case courts apply the same standard applicable to the corresponding 12(b) mo- tion. Thomason v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir. 1989); 5A Wright & Miller, § 1367 at 516 (noting that rule 12(c) can serve as an “auxiliary device” for asserting such defenses). Here, however, the City seems to use rule 12%c) in its customary application to attempt to dispose of the case on the basis of the underlying substantive merits. Defendant’s Br. at 16, 20; see also 5A Wright & Miller, § 1367 at 509, 515 (stating that rule 12%(c) is “primarily addressed to” this function). We therefore believe the ap- ITT. Although the FLSA does not define “work,” its federal regulations set out the circumstances in which meal peri- ods can be excluded from hours worked. Section 785.19%a) provides: C-6 (a) Bona fide meal = Bona fide meal periods are not work time. tesa Agee wig Dn agh capba clude coffee breaks or time for These are rest periods. 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. For example, an office employee who is re- quired to eat at his desk or a factory worker who is required to be at his machine is working while eating. 19 C.F.R. § 785.1%a). For those agencies using the 7(k) exemption, section 553.223(b) provides that meal time may be excluded from hours worked on tours of duty of less than 24 hours provided that the employee is completely relieved from duty during the meal period, and all the other tests in § 785.19 of this title are met. On the other hand, where law enforcement persennel are required to remain on call in barracks or similar quarters, or are engaged in extended surveillance activities (e.g., “stakeouts”), they are not considered to be complete- ly relieved from duty, and any such meal periods would be compensable. 29 C.F.R. § 553.223(b). The district court, in ascertaining whether the officers’ mealtimes here are compensable work time under the FLSA, looked only to the more specific pag tion 553.22%(b), and the examples furnished there. i that the Chicago officers’ mealtimes “in no way resemble” section 553.223’s examples involving stakeouts or confine- ment to barracks, the district court concluded that they are not compensable and that judgment on the pleadings was proper. Leahy, 785 F. Supp. at 730. This approach acparenliy dettveds tenn emutonen x tn ils Chaat ecas the district court relied on most heavily, Lee v. Coahoma County, 987 F.2d 220 (5th Cir. 1991), which similarly noted that the meal breaks at issue “in no way resemble [the section 553.223] example.” Jd. at 225. : : C-7 The district court’s approach falters in two ways. First, the interplay between the federal regulations is more com- plex than the district court acknowledges. There is no rea- son to assume section 553.223(b) is separate and distinct from section 785.19(a); in fact, section 553.223(b) incorpo- rates “all the other tests in § 785.19.” 29 C.F.R. § 553.223(b). A recent Tenth Circuit case, Lamon v. City of Shawnee,? 972 F.2d 1145 (10th Cir. 1992), cert. denied, 61 U.S.L.W. 3670 (1993), found some significance in the differences be- tween the two regulations, but explicitly stated that its contrasting of the two sections did not mean that the “completely relieved of duty” standard is necessarily dif- ferent for each section.* Jd. at 1158 n.18; see also Kohl- heim v. Glynn County, 915 F.2d 1473, 1477 (11th Cir. 1990). As a district court within the Tenth Circuit recently observed, Lamon “strongly implies that the ‘completely relieved from duty’ standard appearing in both § 553.223(b) and § 785.19 has the same meaning.” Brinkman v. Depart- ment of Corrections, 804 F. Supp. 163, 171 (D. Kan. 1992).5 % Lamon, which involved restrictions quite similar to those alleged in the present case, was decided after the district court issued its opinion in this case. The district court did, however, dismiss as distinguishable the lower court decision in Lamon because, in part, “there existed a genuine issue of material fact as to whether the officers had been wg geen 6 relieved of duty.” Leahy, 785 F. Supp. at 729. The court did not explain how, on analogous facts, no such genuine fact issue exists in the case before us. * The dissent’s characterization of Lamon as “relying on the Sec- retary’s —— in section 553.223(b)” is misleading. In articu- lating the predominant benefit test that derives from the I'LSA’s traditional application in other contexts, see, e.g. Armour & Co. v. Wantock, U.S. 126, 133 (1944), the Lamon court clearly did not envision section 553.223(b)’s examples as defining that stan- dard. The Lamon court’s refusal to decide the case as a matter of law on the same essential facts as we have here demonstrates that its understanding of the examples and ours are akin. * Elaborating, the Brinkman court noted that [t]he two distinctions observed between § 553.223(b) and § 785.19 are insubstantial reasons for reading identical words differently (Footnote continued on following page) C-8 The examination of compensability should not turn on a crabbed comparison between the mealtime restrictions and the necessarily arbitrary, and certainly not all examples in the regulations. The appropriate standard is instead the one articulated in Lamon—a standard that sen- sibly integrates developing case law with the regulations’ language and purpose. Under Lamon, a law enforcement employee is completely relieved from duty — a meal period “when the employee’s time is not spent predomi- nantly for the benefit of the emplo ngi 972 F.2d at 1155, 1157; stated differently, the “ requires remunera- tion for meal periods during which 3 a police officer is un- able comfortably and adequately to pass the mealtime be- cause the officer’s time or attention is devoted primarily to official responsibilities.” Jd. at 1155-56; see also Armi- tage v. City of Emporia, 982 F.2d 430 (10th Cir. 1992) (adopting Lamon standard). The second and more important problem with the de- cision below is that it does not acknowledge the basic posture of the cases it relies upon and, in particular, the great extent to which resolution of these cases depends upon the specific circumstances surrounding departmen- tal policies regulating meal periods. No case that we are aware of involving law enforcement personnel treats com- pensability as a matter for judgment on the pleadings. Ne early all of the cases, involving facts generally compar- 5 continued in almost indistinguishable contexts. No rationale for havi 0 lene Scene weed pers epee ae ee cove under § 207(k) is offered in Lamon. Section i) obviously is intended to address the unique employment circumstances of a law enforcement officer, fire fighter, or corrections officer. Presumably, the same circumstances justify taking the same approach to meal period times for those similarly employed sc covered by § 207(k) or not. 804 F. Supp. at 171. C-9 able to those before us, have let the matter go to trial (either with a jury or to the court). In Lamon, for example, the Tenth Circuit reversed a jury verdict in favor of the plaintiffs on the basis of in- adequate jury instructions.” The court gave no indication, however, that the evidence did not support the verdict or that a properly instructed jury that reached the same verdict at a new trial would not be upheld. Indeed, the Lamon court specifically stated that it did “not find that the evidence points but one way and is susceptible to no reasonable inference supporting the Plaintiffs’ claim,” adding that “there was sufficient evidence upon which a jury could properly have returned a verdict for the Plaintiffs on this issue.” 972 F.2d at 1156. Accordingly, the court concluded that “the trial court did not err in submitting to the jury the issue of the compensability of meal periods.” Jd. at 1159. The restrictions on the Lamon plaintiffs’ meal periods essentially replicate those alleged in the present case. See id. at 1156. bn their half-hour meal breaks, the City of Shawnee’s police officers were required either to leave a telephone number where they could be reached or to monitor a portable radio. They had to react to emergen- cy calls, answer to personnel shortages, respond to citizen requests, confront crimes committed in their presence and $ See, e.g., Armitage v. City of ig sin 982 F.2d 430 (10th Cir. 1992) (bench trial); v. Coahoma County, 937 F.2d 220 (5th Cir. 1991) (bench trial). One case resolves the issue prior to trial on cross motions for summary judgment—though with more extensive of Wichita, 725 F. Supp. 1133 (D. Kan. 1989). That court concluded that epapeny are kag ages in light of > ayn of restrictions similar to ut arguably less constraining t ose imposed on Chicago officers. See discussion infra pages 10-12. 7 The Lamon court stated that the challenged instruction “coun- tenanced the misapprehension that the performance of any official duty, no matter how insignificant, during meal periods rendered the time compensable.” 972 F.2d at 1158. C-10 act in a responsible and professional manner. Meal loca- tions were restricted to the city limits, or, with approval, locations close to the city, and the officers were not al- lowed to conduct Ba sonal business errands during their meal breaks. Jd. These restrictions cannot fairly be char- acterized as tighter than or substantively different from those alleged by the plaintiffs here. Thus, if the Lamon restrictions constituted sufficient evidence upon which a properly instructed jury could have returned a verdict for the plaintiffs, id., judgment on the pleadings cannot be warranted on the facts before us. In addition to Lamon, we also regard as instructive the District of Kansas’s comprehensive analysis of the meal- time compensability issue in Wahl v. City of Wichita, 725 F. Supp. 1133 (D. Kan. 1989).® The restrictions in the pres- ent case, while akin to those in Lamon, appear to be more 8 Although the district court in the present case found Wahl to be among the two most authoritative cases, the court rejected Wahl because it was not a circuit court opinion and because it did not in- volve a section 7(k) — y, 785 F. Supp. at 729-30 (find- ing Wahl “factually ””). Informed in part by our view that sections 553.223(b) and 1%a) generally address the same ‘“com- pletely relieved from duty” stan see supra note 5 and accom panying text, we find that, in major part, the WaAl court’s careful — of the compensability question is especially helpful to our tas. Lee v. Coahoma County, 937 F.2d (5th Cir. 1991). In Lee, un- like the present case, the deputies were allowed to ei breaks wherever they pleased, though they would radio they reached their destination and were called back in sional emergency. Jd. at 225. The Lee court, concluding that the SS NS Oe ee ee ee “= meal periods are not compensable, noted merely that breaks at issue were not like those in the section 553.223 examples. Id. at 225. We find that the authoritative value of Lee is impaired by its perfunctory analysis. C-11 inhibiting than those in Wahl. In Waal, the officers were subject to geographical limitations, were required to an- Swer emergency calls and to respond to crimes and citizen inquiries and were restricted both in what they could read and in the personal activities or errands they could per- form. Id. at 1186-37. Unlike the plaintiffs in the case be- fore us, however, the officers in the Wahi case were not required to remain in full uniform or hence to com ly with all the associated regulations of uniformed conduct, al- though changing out of uniform was admittedly imprac- tical on a short lunch period. Jd. Moreover, more than two officers—but not more than “a few’—could visit the same restaurant at once. The Wahl case also does not in- dicate that the officers were prohibited from taking meals at locations other than pe charvemear serving food, al- though they were prohibited from taking meals in a tav- ern, private club or pool hall. Jd. at 1136. Wahl is unique among the reported cases on this nar- row issue in that it arose prior to trial, on summary judg- ment. The case, however, follows a special pattern among summary judgment cases in that the parties filed cross motions for summary judgment and generated a complete record of uncontroverted facts by submitting affidavits, depositions and answers to interrogatories. Looking to sec- tion 785.19(a)’s standard as the appropriate statement of the law, the WaAl court concluded that the plaintiffs clear- ly were not completely relieved of their duties. Jd. at 1139. The court stated that “{wJhat matters in meal period cases is whether the employee is subject to real limita- tions on his personal freedom which inure to the benefit of his employer.” Jd. at 1144. Moreover, [tlhe rules of the city, both written and unwritten, and the practical constraints arising from the limited length of the break, combine to ensure the city of a reserve of uniformed officers, immediately available for emergency service. The restrictions on the plain- tiffs are designed to maximize the public appearance of the officers’ readiness. The city receives the ad- vantages of improved public relations and the elimina- C-12 tion of the need to hire additional officers. But as these benefits accrue to the city, the officers are fac- sl on corresponding limitations on their personal om. Id.; cf. Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944) (stating that “{rjeadiness to serve may be hirea, quite as much as service itself’). In the case before us, a judge or a ge Se factfinder might ultimately find for the defendant. t, however, differs vastly from ruling for the defendant on the plead- ings.® It is not possible in the case before us or in com- parable circumstances in the other reported cases to re- solve factual issues and apply the appropriate standard to those facts at this early s as a matter of law. This is not to say that resolution of the FLSA mealtime com- pensability issue in the countless factual configurations that might arise will always require a trial. What is re- quired is sufficient development of the facts to enabie a capable application of the appropriate predominant benefit standard, including a determination of whether the officers are unable to pass the mealtime comfortably because their time or attention is devoted primarily to official respon- sibilities.*° See Lamon, 972 F.2d at 1155-56. ® The dissent, by asserting that the plaintiffs are not entitled to “automatic compensation” for their meal periods, post at 19, seems to suggest that the plaintiffs claim entitlement to win here and now. The issue at this stage, however, is whether additional fac- tual development is essential to a proper decision. 10 The dissent gives great weight to the court’s ruling against the plaintiffs as a matter of Brag Armitage v. City of Emporia, 982 F.2d 430 (10th Cir. 1992), where the detectives couid not con- duct personal errands during lunch and were required to respond to citizen inquiries and act professionally. But of course the Armi- tage court had the benefit of a complete trial record. The Lamon predominant benefit test—while conceivably applicable purely as a matter of law in some instances—necessarily involves some in- formed appraisal of how the particular mealtime limitations actually (Footnote continued on following page) C-13 | Moreover, although the extent to which police officers receive regular compensation whenever they actually are disturbed by official duties is not a fact of record here, we could not infer from the existence of such a policy that officers who are not affirmatively called back to duty are necessarily completely relieved of duty.1 There is a uni- verse of possibilities about when a meal is “interrupted” So as to require compensation. At this point we can only speculate about the frequency of communication to police officers at mealtime, the frequency and extent of inter- ruptions, the effect of the various restrictions on an other- wise uninterrupted meal period and a variety of other fac- tual matters. The pleadings alone simply do not reveal to what extent the officers’ attention was turned to of- ficial duties. Finally, although only the Alexander and Accosta amended complaints—but not the Leahy complaint—specifically al- lege, in addition to the basic restrictions, that supervisors’ interruptions and requests by the public for assistance and information occur on a regular and frequent basis, we note that the absence of this exact language in the Leahy com- plaint does not alter our analysis with respect to those particular plaintiffs. The complaint’s comprehensive catalog of restrictions makes clear without any supplementary 10 continued affected the officers’ mealtimes. Looking only to the pleadings in the present case, a court cannot competently rule as a matter of law that officers spent or did not spend their mealtime predomi- nantly for the benefit of the employer or that their time or at- tention was or was not devoted primarily to official responsibilities, ‘1 On a related issue, we are not persuaded by the defendants’ argument that the collective bargaining agreement between the City and its police es vege oh the officers’ claim by confirm- ing tl oar gal i i pactode are iat : time within the FLSA. Although a f; might consider wack an agreement as one among many factors in determining whether the officers were completely relieved of duty, it certainly does not outright preclude the officers’ claim. C-14 magic words that further development of the particular factual circumstances is needed before a court or jury can judge whether the officers’ mealtimes are spent predomi- nantly for the department’s benefit and whether officers are unable to comfortably and adequately pass the meal- time because their time or attention is devoted pri y to official responsibilities. See Lamon, 972 F.2d at 1155-57. Federal notice pleading requires no more. See Fed. R. Civ. P. 8(a). en all reasonable inferences are drawn in favor of the officers, the allegations in each of the three complaints are sufficient to raise a viable claim, the merits of which cannot be resolved as a matter of law on these limited facts.!2 IV. This case is appropriately resolved by allowing the trier of fact to judge, after sufficient development of the factual circumstances, whether the officers were completely relieved of duty under the standard articulated in the recent Lamon case. For the foregoing reasons, we REVERSE the district court’s entry of judgment on the pleadings and REMAND for further proceedings consistent with this opinion. Crabb, District Judge, concurring. This is an extraor- dinarily difficult case, made more so by the lack of a fac- tual record. I agree with Judge Cudahy that a more com- plete development of the facts is necessary to allow an informed decision on the scope of the officers’ duties dur- ing their lunch breaks. In this regard, I want to add a few comments on the Rule 12(c) motion, the procedural i? The City itself does not argue that the omissions in the Leahy complaint distinguish it from the other two complaints. In fact, it contends that the frequency of interruptions is irrelevant. Def. Br. at 19-20. ] | | a | C-15 vehicle used by defendant. As this case illustrates, the motion is often confusing. Because it can be used to raise procedural defects after an answer has been filed, it re- sembles the motions brought under 12(b), including the motion to dismiss for failure to state a claim. It can also be used in situations in which the pleadings are complete and without defect and raise only a question of law. See generally, 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure §§ 1367 and 1368 (1990). In this case, it appears that defendant used it in the Leahy case to try to resolve a question of law and that plain- tiffs objected to its use, maintaining that factual develop- ment of the record was necessary to resolve the case and that their complaint was sufficient to state a claim. (In Accosta and Alexander, defendant filed 12(bX6) motions, which were granted by the district court, relying on the disposition of Leahy.) On appeal, plaintiffs argue that the district court should have applied a motion to dismiss standard to defendant’s 12(c) motion in Leahy, that is, the district court should have considered wheth r any set of facts might be alleged that. would support their claim. Plaintiffs seem to be ar- guing that the district court should not be bound by the defendant’s characterization of its motion: whenever the motion is filed in a situation in which there is some ques- tion whether the complaint is sufficient on its face to state . Se the court should apply the motion to dismiss stan- ard. At the outset of his opinion, Judge Cudahy declines to adopt a motion to dismiss standard when the moving par ty is seeking judgment as a matter of law, but he seems to revert to it at the end. At pp. 13-14, supra, he notes the possibility that the plaintiffs in Leahy might be able to show that frequent interruptions turn their lunch breaks into work time, even though these plaintiffs never made allegations to that effect in either their original or their amended complaint. If, when district courts are consider- ing motions for judgment on the pleadings, they have an obligation to consider whether the plaintiffs could come C-16 forward with additional facts that would state a claim, I think this should be made plain in the opinion. I would hold that whenever a defendant moves for judgment on the pleadings in any but the rare case in which the par- ties agree that the pleadings set out a straightforward question of law, the court should apply the motion to dis- miss standard in evaluating the legal sufficiency of the pleadings. Turning to the merits of the case, I note that much of the difficulty of this case lies in appl the “complete- ly relieved from” standard to patrol se | which consists largely of surveillance conducted in a heightened state of readiness. The frequency of interruptions during meal periods may operate to impose a state of readiness so like that of actual patrol work as to warrant compensation dur- ing all meal periods. Such a state of readiness may result from the frequency of dispatcher-initiated calls, or again, departmental regulations may so constrain an officer’s choice of location and activities om | meal periods as to require in effect that the officer orm services com- mensurate with those of an officer who walks a beat. In either case, officers would not be “completely relieved from duty” within the meaning of the FLSA. I understand Judge Cudahy to be holding that these cases should be returned to the district court to allow the plaintiffs a chance te show that the number and frequen- cy of the actual interruptions require them to spend their lunch breaks predominantly on their employer’s business. To the extent that his opinion can be read to hold that ee biog a peters priv of fact rg by e act epartmental regulations, — it. The regulations do not affirmatively require the performance of active duties or so restrict the officer’s chalice of location and activities as to make his lunch break the equivalent of work time. It is the allegation of fre- quent interruptions that raises the possibility that the offi- cers could show that their “attention is devoted primarily to official responsibilities” during meal periods. S the > sence of such an allegation, one can presume that depart- mental restrictions are intended merely to facilitate readi- C-17 ness to respond to events of limited contingency, such as an emergency call, or are otherwise incidental to an offi- cer’s on-call eo ay ong! eos dg ah a be strengthened by a showing a department opted procedures to defer calls by the dispatcher to an officer until after the officer’s meal break and to otherwise in- sulate officers from recurrent disruptions. Conversely, this presumption would be eroded by a showing of frequent interruptions, particularly those initiated by the depart- ment, that Suggest that restrictions are designed to con- vert meal periods into patrol time. Lee, 937 F.2d at 225, was decided in favor of the employer in part because evi- dence existed that officers were called back only in an occasional emergency. Similarly, in Lamon, although the department had revised its administrative code to provide that lunch periods be uninterrupted except in emergen- cies, officers had alleged that evening meals were fre- quently interrupted, that officers were frequently required to respond to emergencies, and that often officers had to fo meals entirely. 1990 U.S. Dist. Lexis 15906, at *5 and *16 (D. Kan. Oct. 4, 1990). Standing alone, the restrictions alleged in Leahy are in- sufficient to raise a viable claim that these plaintiffs-appel- lants were not completely relieved from duty. However, I agree with Judge Cudahy that plaintiffs might be able to allege facts that would sustain their ition and entitle them to relief. Applying a motion to dismiss standard to their complaint, I would give them a chance to add such allegations to their complaint and develop a factual record. In Alexander and ~~ eer epee wr x4 quent interruptions by citizens and inspectors, alt oug they do not allege that they are required frequently to respond to “emergency calls” or other calls by the dis- patcher or to undertake other duties. Although the alle- gations suggest that officers remain free to undertake personal errands while on their lunch breaks, unlike the officers in Wahl, 725 F. Supp. 1133, 1137 (D. Kan. 1989) and Lamon, when all reasonable inferences are drawn in favor of the officers, the allegations support an inference that the officers’ meal periods are primarily for the benefit of the employer. C-18 BAvuER, Chief Judge, dissenting. The Fair Labor Standards Act (“FLSA”) requires that police officers be primarily engaged in work-related duties during meal periods to warrant compensation for those meal periods. Armitage v. City of Emporia, Kansas, 982 F.2d 430, 482 (10th Cir. 1992). The Chicago police officers (“the Officers”) claim that FLSA requires the City of Chi- cago (“the City’) to pay them as a matter of course when the co pil do nothing more than eat during their meal periods.? The majority sets out the facts alleged in the Officers’ complaints. The majority does not mention, however, that the City pays the Officers overtime in accordance with the collective bargaining agreement between the Officers and the City. The agreement requires the City to pay a police officer if the officer works during a meal period. The Officers make no allegation that the City does not comply with the terms of the collective ster tag i ment. The issue in this case, then, is whether FLSA re- quires the City to pay the Officers during their meal pe- riod even if they do nothing other than eat ing this time and adhere to the restrictions listed in the cers’ complaints. I disagree with both the majority’s analysis of the regulations promulgated by the Secretary of Labor (“the Secretary”) and with the majority’s interpretation of decisions by other courts in similar cases. I will ad- dress each in turn. The majority properly points out that two regulations guide our decision in this case. Both of these regulations 1 The Officers spereenity envision the following scenario as a possibility. Two Chicago police officers park their squad car and walk into a local restaurant. They sit down, order a meal, and then spend 30 undisturbed minutes eating. Afterwards, the two officers return to their cars and continue their patrol duties. The Officers argue that FLSA requires the City to pay these two officers—at no less than overtime rates—for this “work.” I dissent because I do not agree that such a meal period is compensable under FLSA. C-19 interpret FLSA to mean that meal periods are not com- pensable when employees—here, the Officers—are “‘com- pletely relieved from duty.” 29 C.F.R. §§ 553.223(b), 785.1%a). The majority points out, and I agree, that the two regulations are not separate and distinct. I part com- pany with the majority because I believe that the regula- tions indicate that the Officers do not allege facts that avery them to automatic compensation for their meal periods. Section 785.19%a), the broader of the two regulations, illustrates by example that “an office employee who is required to eat at his desk or a factory worker who is uired to be at his machine is working while eating” and therefore must be compensated under FLSA. 29 C.F.R. § 785.1%a). Similarly, section 553.223(b), which applies spe- cifically to cases, like this one, involving law enforcement personnel, states that “{wJhere law enforcement person- nel are required to remain on call in barracks or similar quarters, or are engaged in extended surveillance activ- ities (e.g., ‘stakeouts’), they are not considered to be com- pletely relieved from duty, and any such meal periods would be compensable.” 29 C.F.R. § 553.223(b). Taking the two regulations together, as the majority does, does not change the analysis. Both of these regula- tions indicate that when employees covered by FLSA, in- cluding police officers, are required to be at a particular place—at a desk, machine, barracks, or location involving extended surveillance—the employee is working and must be paid. The implication of the Secretary’s examples is that when employees are not so rigidly restricted to a particular place, like the Officers here, they are not en- titled to compensation under FLSA. With no explanation and without any support from prece- dent, the majority announces that the examples in the regulations are “arbitrary, and certainly not all-encom- passing.”” While I agree that the examples are not all- encompassing, I do not agree that they are arbitrary. Rather, the examples in sections 785.19%a) and 553.223(b) C-20 represent the Secretary’s reasoned judgment in interpret- ing FLSA. The majority errs by describing the examples contained in the regulations as arbitrary. Even if FLSA is considered ambiguous, we still must defer to the Sec- retary’s interpretation of FLSA so long as it is based on a permissible construction of that statute. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984); Martin v. The Refrigeration Sch., Inc., 968 F.2d 3, 5 (9th Cir. 1992). The majority apparently does not believe the Secretary’s examples warrant even a cur- sory discussion. Instead, they are dismissed as “arbitrary and not all-encompassing.” I believe that the Secretary’s examples are based on a permissible construction of FLSA. See Lamon v. City of Shawnee, 972 F.2d 1145, 1157 (10th Cir. 1992) (relying on the Secretary’s examples in section 553.223(b)), cert. denied, 61 U.S.L.W. 3620 (1993); Lee v. Coahoma County, 937 F.2d 220, 225 (5th Cir. 1991) (same). Sections 785.19(a) and 553.223(b)—and the examples con- tained therein—demonstrate that the Officers do not allege facts sufficient to show that they are so confined to a par- ticular place during their meal periods that they should be compensated. I similarly disagree with the majority’s use of precedent. In Lee, for example, several deputy county sheriffs sued the defendant county for alleged violations of FLSA. On appeal, the deputies challenged the district court’s find- ing that their meal breaks were not compensable. /d. at 225. The deputies claimed that FLSA required the coun- ty to pay them for their meal periods because the periods were often less than thirty minutes and the deputies could be called back to duty if an emergency arose. Jd. The Fifth Circuit looked to the e les contained in section 553.223(b) and concluded that “{tJhe meal breaks of the . . . deputies in no way resemble [these] example{s].”’ 937 F.2d at 225. The court added that it was “not dispositive that the deputies could be called if an emergency arose and this contingency does not mean that they remained on duty.” Jd. The court also found it insignificant that the meal periods were often less than 30 minutes. Jd. For C-21 these reasons, the court rejected the deputies’ claims and affirmed the district court’s decision that the deputies’ meal periods were not compensable. Jd. at 228. In Lamon v. City of Shawnee, 972 F.2d 1145 (10th Cir. 1992), relied on by the majority, the Tenth Circuit reached a similar result in an analogous case. There, police officers sued the City of Shawnee, Kansas for alleged FLSA vio- lations because the city did not pay them for their 30- minute meal periods. Jd. at 1147. The court noted that the officers were relieved from duty during meal periods but, like the Officers here, had to respond to emergency calls, citizen requests, and crimes committed in their pres- ence. Jd. at 1149. Also like the Officers in this case, the of- ficers in Lamon were required to leave a telephone num- ber where they could be reached or to monitor a portable radio during their meal periods. Jd. In Lamon, the Tenth Circuit had to define the Secre- tary’s “completely relieved from duty” standard in order to decide whether FLSA required the city to compensate the officers for their meal periods.? The court stated that in the context of FLSA section 207(k), 29 U.S.C. § 207(k)— the same statute at issue here—“a law enforcement em- ployee is considered to be completely relieved from duty during a meal period when the employee’s time is not spent predominantly for the benefit of the employer.” Jd. at 1155. The court added that “FLSA requires remunera- tion for meal periods during which a police officer is un- able comfortably and adequately to pass the mealtime because the officer’s time or attention is devoted primarily to official responsibilities.” Jd. at 1155-56. As in Lee, the Lamon court relied on section 553.223(b) instead of the more general section 785.1%a). Id. at 1156- ov. The court noted that section 553.223(b) illustrated cir- cumstances “involving law enforcement personnel that 2 As the majority points out, the “completely relieved from duty” standard is contained in both sections 785.1%a) and 553.223(b). C-22 would run afoul, if not Fines “gina pte of the ‘completely relieved from duty’ stan ”” and pointed to the regula- tion’s examples of “personnel required to remain on call in a barracks or similar quarters or assigned to extended surveillance duties, such as stakeouts.” Jd. at 1157 (citing Lee, 937 F.2d at 225). The court found those examples different from the restrictions placed on the officers in Lamon and found the differences “instructive.”* Id. at 1157. The court therefore concluded that “a police officer must primarily be engaged in work-related duties during meal periods to warrant compensation therefor. That a police officer is on-call and has some limited respon- sibilities during meal periods does not perforce mean the officer is working.” Jd. at 1157. The court held that the district court had erred by ignoring section 553.223(b) and instructing the jury with language that tracked only sec- tion 785.19. Id. at 1156, 1158. The Tenth Circuit therefore reversed the district court’s judgment in favor of the plaintiffs on the meal period issue and remanded the case for a new trial. Jd. at 1159. The Tenth Circuit applied Lamon to a suit brought by police detectives against the City of Emporia, Kansas. Ar- mitage v. City of Emporia, Kansas, 982 F.2d 430 (1992). In Armitage, the police detectives were required to take 3 In full, the Lamon court stated: [Section] 553.223(b) goes on tec illustrate circumstances involv- ing law enforcement personnel that would run afoul, if not compensated, of the ‘completely relieved from duty’ standard, citing the examples of personnel required to remain on cail in barracks or similar quarters or assigned to extended sur- veillance duties, such as stakeouts. We find these differences instructive in determining the reach of the completely relieved from duty standard pursuant to § 553.223(b). Lamon, 972 F.2d at 1157. The ig es describes my characteriza- tion of Lamon’s reliance on the tary’s examples in section 553.223(b) as “misleading.” As the above excerpt from Lamon in- dicates, however, there is nothing misleading about my character- ization of that case. ‘The Tenth Circuit in Lamon clearly relied on the Secretary’s examples in section 553.223(b). C-23 an unpaid lunch break of at least 30 minutes. Jd. at 431. The police detectives had to notify the dispatcher of their location in case they were needed, were not allowed to consume alcohol during lunch, and were required to re- spond to questions from the public if approached during lunch. Jd. Also, like the Officers here, the police detec- tives in Armitage were paid at the overtime rate if they were called back to duty during lunch. Jd. The police detectives sued the city pursuant to FLSA. After a bench trial, the district court awarded back py for the police detectives’ lunch periods. Jd. The Tenth Circuit reversed because Lamon “require{d] a different outcome under these facts.” Jd. As articulated in Lamon, the court in Armitage stated that “the proper standard for determin- ing compensability of a meal period is whether the officer is ‘primarily . . . engaged in work-related duties during meal periods.’”” Jd. at 432 (quoting Lamon, 972 F.2d at 1157). The Armitage court determined that the facts, as found by the district court, indicated that the police detec- tives were not primarily engaged in work-related duties during their meal periods. 982 F.2d at 432. Accordingly, the court reversed the award of backpay for meal periods. Id. The court did not remand the case for a new trial, as in Lamon, but instead substituted its judgment for the district court’s and instructed the district court to enter judgment for the city. Jd. at 438. The majority in this case accurately observes that Lee, Lamon, and Armitage all involved trials whereas here, the district court dismissed the Officers’ compiaints. The gist of Lee, Lamon, and Armitage, however, demonstrates that dismissal was proper. In all three cases, the courts ruled against the deputy sheriffs, police officers, and police detectives. In Lee, the court affirmed the district court’s decision that the meal periods were not compensable. In Lamon, the court reversed a district court’s decision that meal periods were compensable. Finally, Armitage—the most recent pronouncement on the issue—is perhaps the most instructive because the court in that case had the obvious advantage of interpreting and applying both Lee C-24 and Lamon. In Armitage, the court simply looked at the facts, decided the case against the plaintiff police detec- tives as a matter of law, and ordered the district court to enter judgment for the defendant city. The Armitage court’s conclusion that FLSA did not require the defen- dant city to compensate the police detectives for their meal periods is one that we should follow here. Numerous other courts have similarly interpreted FLSA. See, e.g., Brinkman v. Department of Corrections, 804 F. Supp. 163, 172 (D. Kan. 1992) (merely because corrections of- ficers may be on-call and retain some other duties over their lunch period does not of necessity require compen- sation); City of Univ. Park v. University Park Police Ass’n, 766 S.W.2d 531 (Tex. Ct. App. 1989) (police ised mealtime not compensable when mealtime break not a predominantly for the benefit of defendant city); Weeks v. Chief of Wash. State Patrol, 689 P.2d 732 (Wash. 1982) (state troopers not entitled to overtime compensation for lunch hour when lunch hour was included in their salaries and when troopers were paid at time and a half rate if called out during lunch hour). * I also disagree with the majority’s interpretation of WaAl v. City of Wichita, 725 F. Supp. 1133 (D. Kan. 1989). I do not agree with the majority’s assertion that the restrictions the City places on the Officers in this case are more restrictive than those in Wahl. In fact, I believe the opposite is true. The Wahl court found the following restrictions, none of which are alleged in this case: officers were prohibited from lunch with their wives; offi- cers had limited reading privileges their meal period; some — were prohibited from going pectin: hanes drive-throughs perma. Sp cee teller machines; other were not allowed to watch television or play pinball or video games. /d. The court therefore held that ‘Theeuies the plaintiffs are subject to substan- tial limitations and duties during their meal peri 9 A en- titled to compensation for those periods under the FLSA.” Id. As an initial matter, Wahl is factually distinguishable from the instant case because the restrictions in Wahl are more extensive than those alleged here. Also, in Armitage, the Tenth Circuit ob- served that the district court in that case (Armitage) partially (Footnote continued on following page) C-25 The trend is clear. FLSA does not require municipalities to pay police officers unless the officers work during their meal period—that is, unless the officers are primarily en- gaged in work-related duties. The facts alleged in the com- plaints are no different than the facts found after trial in Lee, Lamon, and Armitage. In fact, this is an even Stronger case for the City than for the municipalities in those cases. Here, the City is bound by the collective bar- gaining agreement which requires that the Officers receive overtime rates when they work during their meal periods. The Officers do not allege that the City has breached the collective bargaini a! ement and, absent such an al- legation, I assume the ity fully complies with its terms. Consequently, the City pays the Officers if they work dur- ing their meal periods and does not pay them if they do not work during their meal periods. FLSA requires no more. There is no need for further factual development of the Officers’ case when the facts alleged—taken together with the collective bargainin agreement—so clearly indicate that the City has not violated FLSA. I do not believe that the district court’s Stee hae docket should be cluttered with this case when the cers’ complaints are doomed. Finally, I do not believe that federal courts should micro- manage municipal police departments when, as in this case, a collective bargaining agreement provides for a compen- sation plan that fully comports with FLSA’s requirements and the police officers do not allege that the municipality has violated such an ment. I would affirm the district court’s dismissal of the Officers’ complaints. * continued relied on Wahl to award the plaintiff police detectives compensa- tion for their meal periods. Armitage, 982 F.2d at 431. The Tenth Circuit rejected that result, noted that Lamon set forth the cor- rect standard, applied that standard, and ordered the district court to enter judgment for the defendant city. Id. at 431-33. D-1 APPENDIX D [Dated January 28, 1992] IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION DANIEL F. LEARY, et al., ) ) Plaintiffs, ) ) v. ) 89C 9354 CITY OF CHICAGO, ) Judge George M. Marovich a Municipal Corporation, ) ) Defendant. ) In this matter Chicago police officers (“Officers”) seek overtime pay for their meal breaks pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §200 - 219.’ The City of Chicago (“City”) has moved pursuant to Fed. R. Civ. P. (“Rule”) 12(c) for judgment on the pleadings contending that as a matter of law the Officers are not entitled to overtime pay. For the reasons set forth below, we grant the City’s motion and dismiss this matter with prejudice. ' Hereafter we will refer to various provisions of the Fair Labor Standards Act as “Section ____.” D-2 BACKGROUND The Officers are past and present members of the Chicago Police Department assigned to the patrol and traffic divisions. The Officers are assigned to eight and one-half hour shifts. One half hour of each shift is allotted to an unpaid meal break. The Officers filed suit charging that the City’s failure to compensate them for their meal breaks violates the FLSA.’ The Officers claim their meal breaks should be compensable under the FLSA because they are not completely relieved of their duties during their meal breaks. Specifically, the Officers claim they are restricted during their meal breaks in the following ways: a. Officers are required to remain within the district and/or sector of assignment unless prior permission to leave such area is granted by a supervisor. b. Officers are required to carry their service weapons and remain in full uniform, if on uniform duty, and are required to adhere to all regulations concerning conduct while in uniform, such regula- tions include requirements that police officer employ- ees assigned to uniform duty wear their uniform hat at all times while outdoors. c. Officers must report their meal location to the dispatcher and are required during their meal period, * In its motion, the City argues the complaint is defective because it does not allege that the meal break is work time within the meaning of the FLSA. City’s Memorandum of Law at pages 5-6. In their response, the officers seek to amend their complaint to cure this pleading defect. We grant the Offi- cers’ motion to amend the complaint, and we will construe the en motion as being brought to challenge the amended com- plaint. EE D-3 upon request, to terminate such meai period to respond to calls for police assistance, to answer questions, and to follow instructions from the dis- patcher or superior officers. d. Officers must report their meal location to the dispatcher and are required during their meal period, upon request, to terminate such meal period to respond to calls for police assistance, to answer questions, and to follow instructions from the dis- patcher or superior officers. e. Officers assigned to a two person unit are to take their meal period with both officers taking such period at the same time and location. f. Meal periods may not be taken during the last hour of a shift assignment. g. Police officer employees are required to refrain from conduct deemed by the department to be unbe- coming of a police officer while on duty. Such conduct has, on occasion, been defined to include playing golf, reading nondepartment publications, resting or nap- ping, or other conduct deemed by the Department to be inappropriate or tending to reflect poorly upon the uniform. h. Officers must refrain from the consumption of alcoholic beverages. i. Officers must respond to requests for assistance or information from members of the public. j. Officers must refrain from congregating, which is defined that no more than two officers may be pres- ent in the same establishment without prior permis- sion. k. Officers who have assigned portable radio units must maintain the radio units with them and remain in radio contact and respond to calls or requests for information on such radios. D-4 l. Officers are subject to report and review by in- spectors and other supervisory personnel. m. Officers must respond to citizen or police emer- gencies. n. Officers not assigned to portable radio units must spend their meal period at a location where they can be reached by telephone, must provide the dispatcher with the telephone number and must respond to calls or requests for information on such telephones. o. Officers must receive permission from the dis- patcher to take a meal period and such permission may be and frequently is denied depending upen the workload of the district and the availability of other police officers to respond to calls. Officers’ Amended Complaint at pages 3-5. The City argues that the meal break restrictions are not sufficient as a matter of law to establish that the meal periods are compensable work time under the FLSA. DISCUSSION A motior for judgment on the pleadings may be granted only if the moving party clearly establishes that no material issue of fact remains to be resolved and that he or she is entitled to judgment as a matter of law. National Fidelity Life Ins. Co. v. Karaganis, 811 F.2d 357 (7th Cir. 1987). The court may consider only matters presented in the pleadings and must view the facts in the light most favorable to the non-moving party. Jd. The court, however, is not bound by the non-moving party’s legal characterizations of the facts. Jd. In considering this motion, therefore, we assume the facts as alleged by the Officers to be true. Be aE A, ba aes) We Es Ot a [ns Rie aes fora ae oe ee 4. a FF Pub Eells Ee ES ee i As ead tlt i hs BP i ek oe SY he a ee ae 2 weet ve wg. = _— >? Se ee eee Se ae ret. serge ta eee D-5 The FLSA requires employers to pay overtime to em- ployees who work more than forty hours per week. Sec- tion 207(a). However, Section 207(k) creates an exception to the standard wage and hour provisions of the FLSA. (Hereafter we will refer to Section 207(k) as §7(k).) Under that section, public law enforcement and fire departments can declare work periods from seven to twenty-eight consecutive days. Employees working within a twenty-eight day work period are entitled to overtime if they work in excess of 171 hours within that period. The City has elected to pay the Officers on the basis of a twenty-eight day work period, and the parties agree that if the Officers work more than 171 hours within that period, they are entitled to overtime pay. The sole issue before us is whether the Officers’ meal period is work time which should be included within the 171 hour calculation. The FLSA does not define what is considered work under the Act; Congress left that decision to the courts. Hill v. United States, 751 F.2d 810, 812 (6th Cir. 1984), cert. denied, 474 U.S. 817 (1985). And neither the Seventh Circuit nor any district court in the Northern District has [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0217%3A2. Public record. Not legal advice.