      Case: 14-60637    Document: 00513193824     Page: 1   Date Filed: 09/15/2015




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                                               Fifth Circuit

                                                                            FILED
                                                                      September 15, 2015
                                   No. 14-60637
                                                                         Lyle W. Cayce
                                                                              Clerk
DONALD R. NAYLOR; ANTHONY JENKINS; JAMES E. BROWN;
SANDRA A. SKIPPER; MICHAEL DARDEN; LAWRENCE F. HATTEN;
BRANDON BOYD; DEMETRICK D. JOHNSON; CLINTON G. TEW;
BETTYE C. JACKSON; WILLIAM M. HARVEY; SANCHEZ J. CLAYTON;
MICHAEL GRIFFIN; JOHN T. STEWART; MEARLON COLEMAN; LAURA
CHIASSON; JERRY M. SIMMONS; MARCUS HOPSON; TYRONE A.
JOHNSON; RODNEY M. STRICKLAND; DURLAND YOUNG; ALL
PLAINTIFFS; RALPH L. SIMPSON,

               Plaintiffs - Appellants

v.

SECURIGUARD, INCORPORATED; PATRICIA MARVIL; JOHN
OXENDINE; OSCAR J. HOLT,

               Defendants - Appellees




                  Appeal from the United States District Court
                    for the Southern District of Mississippi


Before REAVLEY, PRADO, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
       Meal breaks have been a cherished feature of the American workday
since the Industrial Revolution transformed the life of workers more than a
century ago. See generally Lunch Hour NYC, New York Public Library (June
22,   2012),   http://www.nypl.org/audiovideo/lunch-hour-nyc      (detailing       the
evolution of fixed meal hours since their introduction in the mid-1800s).
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                                      No. 14-60637
Department of Labor regulations generally exempt meal breaks from pay
requirements but specify that such breaks ordinarily last at least thirty
minutes. The employer in this case scheduled thirty-minute breaks for meals
but imposed traveling obligations that ate into the employees’ time for meals.
We must decide if a jury could find that, because of these obligations, the
breaks are more like mere rest periods and thus compensable under the Fair
Labor Standards Act.
                                             I
       Access to Naval Air Station Meridian is controlled by several gates
located across the base. The United States Navy contracted with Defendant
Securiguard, Inc. to provide guards for each gate, and Securiguard hired the
plaintiffs to fill those positions. During the years at issue in this lawsuit, the
guards usually worked eight-hour shifts with two scheduled thirty-minute
meal breaks.      Each meal break began when a Securiguard “relief officer”
arrived at the gate in a company car. The guard then had thirty minutes to
spend away from the guard post. During the break, the guards were required
to remain armed and in uniform, which included a bulletproof vest.
       Although the guards expressed a desire to eat at the gate or while
sitting in the parked company car during the break, Securiguard—apparently
fearful that the Navy would see the guards eating and believe they were
shirking their security duties—prohibited them from doing so. 1 Securiguard
instead required the guards to travel to a designated break area on the base.
The time required to reach the closest area varied depending on where the
guard was stationed and which shift the guard was working. At the low end,
guards posted at the “truck gate” could walk to a storage unit just a few yards

       1 Securiguard submitted an affidavit from the plaintiffs’ manager that the guards
could sit in the parked car during the break. Plaintiff Donald Naylor’s affidavit contradicts
that assertion, and the summary judgment posture of this case dictates that we resolve the
dispute in favor of the plaintiffs.
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away; guards posted at the “main gate” could drive less than a minute to the
base security building; and guards posted at the “flightline gate” between
6:00 a.m. and midnight could go across the street to a fire station. At the
high end, guards posted at the “housing gate” or working the graveyard shift
at the flightline gate had an eleven or twelve minute roundtrip drive between
the nearest location where they could eat. 2 The guards were required to use
the company car to reach the locations not within walking distance, and
while in the vehicle they were prohibited from eating, drinking, smoking, or
talking on their cell phones.
      Treating each thirty-minute break as a “bona fide meal period” for
which the Fair Labor Standards Act (FLSA) does not require compensation,
29 C.F.R. § 785.19, Securiguard did not compensate the guards for this time.
      In 2010, the Department of Labor investigated Securiguard and
partially disagreed with that determination. It assessed a civil penalty based
on its conclusion that one meal break was compensable because it took place
outside a regular meal time. Securiguard maintained that its pay practice
was correct but changed its policy from that point forward to allow the guards
to take a single sixty-minute break rather than two thirty-minute breaks.
      The agency investigation did not result in an award of back wages, and
more than thirty guards brought this case under the FLSA seeking such




      2  Guards on certain shifts could also drive to restaurants located on the base,
although they were farther than the closest option for each gate. The drive time to base
restaurants, because it was longer than the drive time to the nearest possible location
where the guards were permitted to eat, does not factor into our analysis. Most employees
have the option of choosing to walk or drive to a restaurant for lunch. Or an employee
might choose not to eat at all and just go for a thirty-minute walk. That exercise of the
employee’s freedom during a meal break is, of course, different than an employer
requirement that an employee travel to a separate location before she is allowed to eat. In
this opinion, we are concerned only with that latter situation.
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damages. 3 As this case seeks only retrospective relief, it focuses solely on the
thirty-minute meal periods that Securiguard no longer provides. Neither side
advances the position taken by the Department of Labor or otherwise
distinguishes between the two meal breaks; the guards argue that both meal
breaks qualifed as compensable time, whereas Securiguard contends that
neither did.
       The district court granted Securiguard’s motion for summary judgment.
It held that the FLSA requires compensation for a meal break only when an
employer imposes “substantial duties or restrictions” during the designated
time. Reasoning that “requiring employees to use company vehicles on lunch
breaks can hardly be construed as a work duty” and that the company inured
no benefit from the meal break, the district court found Securiguard’s
restrictions too insubstantial to make the break compensable. 4                  Naylor v.
Securiguard, Inc., 2014 WL 1882442, at *3 (S.D. Miss. May 12, 2014).




       3 In addition to suing Securiguard, the guards also brought claims against John
Oxendine, their Securiguard manager, and Patricia Marvil, Securiguard’s president.
Because neither Oxendine nor Marvil make any arguments for why they should be treated
differently than Securiguard, we refer to the defendants collectively as “Securiguard.” The
claims against Oscar Holt, who is a named defendant but was never served, are not before
us on appeal.
       4 The district court also assumed that the guards could schedule the thirty-minute

breaks back-to-back for a full hour of break time. The parties agree this was an erroneous
reading of the record. We find, however, that the incorrect assumption about the length of
the breaks does not itself merit reversal because the district court also based its reasoning
on the nature of the restrictions. See Gilbert v. Donahoe, 751 F.3d 303, 311 (5th Cir. 2014)
(holding that we may “affirm on any ground supported by the record . . . so long as the
argument was raised below”).
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                                      II
      Department of Labor regulations, which neither side contends are
unreasonable interpretations of the FLSA in this area, divide workplace
breaks into two worlds. First are “rest breaks” (often called “coffee breaks”)
for which an employee must be paid:
      [Rest.] Rest periods of short duration, running from 5 minutes to
      about 20 minutes, are common in industry. They promote the
      efficiency of the employee and are customarily paid for as
      working time. They must be counted as hours worked.
29 C.F.R. § 785.18. Second are “meal periods” for which an employee need
not be paid:
      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. . . . Ordinarily 30 minutes or more
      is long enough for a bona fide meal period. A shorter period may
      be long enough under special conditions.
Id. § 785.19. The regulations thus make the duration of the break the key
factor in whether it is classified as the shorter, compensable “rest break” or
the longer, noncompensable “meal period.”       The reason for the temporal
distinction is that a shorter break is deemed to predominately benefit the
employer by giving the company a reenergized employee. See id. § 785.18.
      In setting the time away from the guard station at thirty minutes,
Securiguard attempted to meet the threshold time at which a break is
ordinarily treated as a noncompensable meal period. But the guards argue
that the employer-mandated travel time before they were allowed to eat
shortens the break to a time period that no longer qualifies as
noncompensable.
      A meal break often does not allow for eating during the entire break;
some time may be needed to move to another area of the workplace or to
leave the workplace. Although office workers are usually free to eat at their

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                                No. 14-60637
desks and thus take full advantage of a thirty-minute break (to the extent
one can be on “break” at her desk), employees on the factory floor usually
must move to a “break room” before eating due to safety concerns. Or, closer
to the situation in this case, retail employees may have to move off the sales
floor so customers do not see them munching on a sandwich or slurping soup
near the merchandise. To the extent this transition time amounts to no more
than a couple of minutes, it is incidental and does not undermine the
noncompensable nature of the break. See Henson v. Pulaski Cty. Sheriff
Dep’t, 6 F.3d 531, 534 (8th Cir. 1993) (recognizing that the standard for a
sufficient meal break is flexible and must accommodate for “the nature of the
business involved”). This is the case for the two-minute round trip to a break
area when employees were working at the main gate (a one-minute drive to
the security building), truck gate (a one-minute walk to the storage unit), or
flightline gate between 6:00 a.m. and midnight (a one-minute walk to the fire
station).   We will thus affirm the grant of summary judgment for these
breaks.
      At some point, however, employer-mandated transition time becomes
substantial enough that it may make the break more like the shorter “rest”
period. Consider a situation in which an employee is relieved from a duty
station for thirty minutes but spends twenty-five of those minutes in
company transportation traveling to and from a break room. Would anyone
reasonably contend that the remaining five minutes during which the
employee is allowed to eat—hardly enough time to even scarf down a
sandwich and take a few gulps of a drink—renders the entire thirty minutes
a “bona fide meal break”? Although not as extreme a situation, the ten and




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twelve minute round-trip drive times at the housing and flightline 5 gates cut
into the employee’s eating time enough to raise doubts about whether the
entire period qualifies as noncompensable.
      We have never addressed this question about the legal effect of
employer-mandated travel time that significantly eats into an otherwise
noncompensable thirty-minute meal period. The closest case addressed the
compensability of twenty-minute meal breaks given to police officers after
they arrived at a location where they could eat. See Lee v. Coahoma Cty.,
937 F.2d 220, 225 (5th Cir. 1991).              Lee, which relied in part on FLSA
regulations specific to law enforcement officers, affirmed a ruling reached
after trial that the breaks qualified as bona fide meal periods. Id. (refusing to
find clear error in the trial court’s finding that the shortness of the breaks
made them compensable). It does not, however, dictate a ruling here that
judgment as a matter of law was appropriate on an issue that we have often
pointed out may be heavily factbound and thus, as in Lee, “is ordinarily
resolved by the trier of fact after hearing all of the evidence.” Bernard v. IBP,
Inc. of Neb., 154 F.3d 259, 265 (5th Cir. 1998). Most notable among the
factual distinctions, in Lee the “deputies did not log off until they had arrived
at their chosen eating place[,] and were therefor compensated for traveling to
their destination,” which is what led us to conclude that the “usual thirty
minute threshold [was] inapplicable.” Lee, 936 F.2d at 225.
      In analyzing this different situation in which Securiguard treated the
entire period of the break—both the travel time and time during which the
guards could eat—as noncompensable, we consider our meal period cases
since Lee. They have established a framework to analyze the compensability


      5   All references to the flightline gate from this point forward refer to the shift
between midnight and 6:00 a.m., when the fire station was not available as a break
location.
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of meal breaks but have also arisen in significantly different factual contexts.
The typical meal break case involves a situation in which the employee is
generally allowed to eat during the entire break period but continued to be
“on call” or otherwise incur work responsibilities during the period.        For
example, our leading case on meal breaks arose from the employer requiring
its maintenance workers to handle any repair issues that arose during their
breaks.    Bernard, 154 F.3d at 262–63.         Another case stemmed from
restrictions on firefighters’ dress and use of city-owned automobiles during
the meal break. Alvarez v. City of El Paso, 2002 WL 334630, *1 (5th Cir.
2002). In these cases, we held that “[t]he critical question is whether the
meal period is used predominantly or primarily for the benefit of the
employer or for the benefit of the employee.” Bernard, 154 F.3d at 264–65
(referring to this inquiry as “the predominant benefit test”).        This test
considers “whether the employees are subject to real limitations on their
personal freedom which inure to the benefit of the employer; whether
restrictions are placed on the employee’s activities during those times . . .;
whether the employee remains responsible for substantial work-related
duties; and how frequently the time is actually interrupted by work-related
duties.” Id. at 265.
      The district court applied the predominant benefit test in concluding
that the guards predominately benefited from the meal break despite being
required to spend a significant amount of time driving away from their duty
station.   Naylor, 2014 WL 1882442, at *3 (reasoning that “requiring
employees to use company vehicles on lunch breaks can hardly be construed
as a work duty” and the company inured no benefit from the meal break). In
doing so, the district court attempted to fit this case within the line of
“predominant benefit” cases finding that restrictions such as those requiring
that an employee stay in uniform during a meal break are nothing more than
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                                     No. 14-60637
“inconveniences, ” Alvarez, 2002 WL 334630, at *1, as “the employee can use
the time effectively for his or her own purposes,” Bernard, 154 F.3d at 265–66
(defining this as the “critical issue”)); cf. Ruffin v. MotorCity Casino, 775 F.3d
807, 812–15 (6th Cir. 2015) (holding that the employees failed to prove the
meal break compensable despite restrictions that they stay in uniform, wear
their equipment, remain on the premises, and infrequently respond to
emergencies). This conclusion ignores that, at least if the evidence favoring
the guards about their lack of freedom during the travel time is credited, they
could not use more than a third of the meal periods still at issue for their own
purposes.
        How much of that employer-mandated travel time, during which the
employee cannot do as she pleases, is enough to render a break a rest period
instead of a meal period? Both parties contend that the predominant benefit
test provides the answer, although it does not seem like a perfect fit for this
situation. After all, the answer to the predominant benefit test may well be
different for discrete portions of the thirty minutes—the driving time seems
to benefit Securiguard with little employee freedom whereas the remaining
time provided at least some benefit to the guards. Viewing the break as a
single unit like Securiguard treated it, 6 the core concern is the same as it was
in Bernard and the other cases dealing with meal breaks: how much time is
available to the employees? In Bernard, the constraints on the employees’
time resulted from frequent interruptions that lasted for various durations of
time.       154 F.3d at 262-63 (stating the plaintiffs’ meal breaks were
“interrupted frequently by supervisors who often asked them to repair


        6 Neither side advances the position that the break might be only partially
compensable, as was true in Lee where the travel time was paid. See also Alvarez v. AMB-
Trans, Inc., 2012 WL 5453518, at *2, *5 (W.D. Tex. Nov. 7 2012) (finding forty minutes of a
sixty-minute break compensable because the plaintiffs could not use that time “effectively
for their own purposes”). The district court may consider that possibility on remand.
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                                 No. 14-60637
equipment” or “to discuss the afternoon work schedule”). The same is true
here, except that the “interruptions” happened more frequently—every meal
break—and lasted a fixed period of time. A requirement that deprives the
employee of the opportunity to eat during 40% of a thirty-minute break thus
strikes at the heart of what we and other courts have recognized as the most
important consideration: an employee’s ability to use the time “for his or her
own purposes.” Id. at 265; see Avery v. City of Talladega, 24 F.3d 1337, 1347
(11th Cir. 1994) (focusing on whether the employees “are free to spend their
meal breaks in any way they wish”). Unlike a requirement that the employee
stay in uniform, or even one that may result in the employee having to
perform a duty on rare occasions, a jury could find that preventing the
employee from eating—ostensibly the main purpose of the break—for twelve
out of thirty minutes during every break is a meaningful limitation on the
employee’s   freedom.   See Lee, 937 F.2d at 225 (holding that whether a
twenty-minute break was sufficiently long was a question of fact); see also
Mireles v. Frio Foods, Inc., 899 F.2d 1407, 1411 (5th Cir. 1990) (applying the
predominant benefit test to waiting time and affirming the factual finding
that “[w]aiting times ranging from fifteen minutes to forty-five minutes . . .
were of such a short duration that Plaintiffs could not effectively use them for
their own purposes”). The travel obligation thus cannot be deemed a mere
“inconvenience” as a matter of law.
      And if a jury concludes that the twelve minutes predominately
benefited Securiguard, the additional problem for Securiguard is that the
remaining portion of the meal period during which the employee could eat
was only eighteen minutes, which falls under time thresholds at which a
break is usually deemed a bona fide meal period. At only eighteen minutes,
the break could be viewed as one that, like a morning coffee break, is
primarily intended to “promote the efficiency of the [guards]” and thus
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                                      No. 14-60637
benefit the employer with rejuvenated and nourished employees, see 29
C.F.R. § 785.18, as opposed to a lengthier period of employee freedom during
which the benefit to the employee predominates, see id. § 785.19.
       This conclusion is supported by our cases holding that “predominant
benefit” is typically a fact question on which the employer bears the burden. 7
Bernard, 154 F.3d at 265 (“Whether meal time is predominantly for the
benefit of the employer is a question of fact that is ordinarily resolved by the
trier of fact after hearing all of the evidence.”); see also Hartsell v. Dr. Pepper
Bottling Co. of Tex., 207 F.3d 269, 274 (5th Cir. 2000) (“The ‘predominant
benefits test’ is applied to determine who primarily benefits from the period.
This is a question of fact. . . .”); Lee, 937 F.2d at 225 (deferring to the “district
court’s fact conclusion that the meal periods are not compensable”). Indeed,
the impact of the travel restriction is not the only disputed fact that a jury
could find material to the predominant benefit inquiry. We noted above a
dispute about the extent to which the guards’ freedom was limited while in
the company car. See Reich v. S. New Eng. Telecomms. Corp., 121 F.3d 58,
68-69 (2d Cir. 1997) (finding the meal break compensable partly “[b]ecause
[the employer] required all workers to remain on-site” during the meal
breaks).
       We therefore AFFIRM summary judgment on the guards’ claims based
on the main gate, the truck gate, and the 6:00 a.m. through midnight shifts
at the flightline gate when the mandatory commute time was de minimis.

       7  In some circuits, the employee has the burden to prove the time is compensable.
See, e.g., Hertz v. Woodbury Cty., 566 F.3d 775, 783–84 (8th Cir. 2009) (“Plaintiffs cite
Fourth and Fifth Circuit case law as support for the proposition that the [employer] bears
the burden because mealtimes qualify as an ‘exemption’ within the meaning of the FLSA.
We are not persuaded . . . [m]ealtimes, then, are not exempt from compensation, but rather
they are not compensable in the first instance.”); Myracle v. Gen. Elec. Co., 1994 WL
456769, *4 (6th Cir. 1994) (“[I]t is the employee who bears the burden of proving that he or
she performs substantial duties and spends his or her meal time predominately for the
employer’s benefit.”).
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But because a jury could find that the remaining meal breaks did not allow
enough time for the employees to use the break for their own purposes to
qualify as noncompensable, we REVERSE the district court’s grant of
summary judgment and REMAND for further proceedings.




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