Deducting Non-Exempt Employee Meal-Breaks While Traveling: Eleventh Circuit Serves-Up Heartburn for Employers
By Rex Fennessey - McMahon Berger P.C.
October 21, 2021
Any employer who has had to deal with compensating non-exempt employees for travel time knows that the Fair Labor Standards Act’s requirements on this issue are challenging to say the least. Indeed, the task is sufficiently daunting that many employers simply do not allow non-exempt employees to travel for work at all. But in many industries, non-exempt employee travel is unavoidable. For employers whose non-exempt employees must travel, court decisions on the FLSA’s travel requirements are often greeted as welcome guidance given the ambiguity of the Secretary of Labor’s regulations. Unfortunately, sometimes court decisions beg more questions than they answer. Recently, two federal courts of appeals could not agree on what seems to be a straightforward question: Can an employer deduct for a meal break when traveling employees have no other duties while in transit?
The facts of the two cases were the same. Akal Security had a government contract to transport detainees deported from the United States back to their home countries. The process frequently involved transporting individuals via airplane. To ensure the safety of such flights, Akal staffed them with “air security officers” (ASOs). Once the detainee had been returned to their home country, the ASOs had to make a return flight back to the U.S. Because the return flights carried no detainees, ASOs had essentially no duties while in the air. Thus, ASOs often slept, read, played games, or simply watched television on return flights. Despite the lack of work, Akal nevertheless paid the ASOs for their time on the return flight with one exception: Akal had a policy of automatically deducting a one-hour meal period for return flights which lasted more than 90-minutes. Although there was no specific time allotted for meals, it was undisputed that sufficient down time existed for an hour’s meal break on these flights.
Enter the lawyers. Several ASOs sued Akal in various federal courts, claiming that they should have been paid for these meal periods. At issue were two provisions of the FLSA. First, the FLSA makes clear that “[t]ime spent by an employee in travel as part of his principal activity…must be counted as hours worked.” See 29 C.F.R. § 785.38. Second, the FLSA states that “bona fide meal periods” – those periods where the employee is completely relieved from duty and which last at least 30 minutes – need not be paid because they are not compensable work time. See 29 C.F.R. § 785.19. The FLSA seemed to harmonize these two rules with another regulation, which states that “an employee who drives a truck, bus, automobile, boat or airplane, or an employee who is required to ride therein as an assistant or helper, is working while riding, except during bona fide meal periods.” See 29 C.F.R. § 785.41 (emphasis added).
The United States Court of Appeals for the Fifth Circuit read these regulations and concluded that, because the ASOs had no affirmative duties and had at least one hour during the return flight to eat a meal, the employees were not entitled to any additional compensation for these meal periods. But a few months later, the Court of Appeals for the Eleventh Circuit came to exactly the opposite conclusion on the same facts. That Court found that ASOs were engaged in compensable work the entire return flight because they had no duties on the return flight. The Eleventh Circuit reasoned that there was no difference on the return flights between normal down-time (which was compensable) and meal-periods (which were not), so the entire flight was compensable. The Eleventh Circuit expressed its concern that, if Akal were permitted to deduct one hour from these return flights, it might later decide to make the whole flight a “meal period” and therefore pay ASOs nothing for their travel.
Who – besides Akal – cares? Well, the Eleventh Circuit covers the states of Alabama, Georgia, and Florida, so employers in those states who frequently have non-exempt employees travel should take notice. And the Eleventh Circuit’s decision is not applicable to employers located only in those states; it may also impact employers from other states who send their non-exempt employees to those states for work. More importantly, understand that although the facts of these cases involved airplanes, the Eleventh Circuit’s reasoning is not limited to air travel. Employees traveling by train or bus would likely be in a situation very much like ASOs: traveling but otherwise relieved from duty. But the most likely impact of the Eleventh Circuit’s decision will be on the much more common situation of non-exempt employees who ride as passengers in cars, trucks, and vans.
Consider the Mississippi (Fifth Circuit) construction company who sends its non-exempt laborers to Florida (Eleventh Circuit) for a project. One worker is a passenger in a company vehicle driven by another and, like the ASOs, has no duties while riding to or from the project. Both workers stop by a fast-food restaurant en route and eat while continuing their journey. The worker munching-while-driving must clearly be paid, but what about the passenger? Can the employer deduct time for the passenger’s meal break? Would the answer be different if the company’s policy required that traveling employees physically stop and eat? What if the company’s policy requires employees to stop-and-eat, but they ignore the policy and drive anyway? The Eleventh Circuit’s decision leaves the answers to such questions unclear.
One clear takeaway is this: if an employer has non-exempt employees who must travel, a carefully reasoned travel time policy that covers all of the areas where the company operates is a necessity, not a luxury. In our increasingly interconnected world, the FLSA’s travel time policies will continue to give employer’s heartburn.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.
 Dean, et al. v. Akal Sec., Inc., 3 F.4th 137 (5th Cir. 2021)
 Gelber, et al. v. Akal Sec., Inc., No. 18-14496 (11th Cir. 2021)