Employers frequently wonder when they must pay for an employee’s travel time or deduct time for an unpaid lunch. A recent decision from a three-judge panel of the U.S. 11th Circuit Court of Appeals in Atlanta (which covers employers in Alabama, Florida, and Georgia) found an employer couldn’t automatically deduct an hour for lunch, even when the employee was completely relieved from all duties. This answer, however, was due to the job in question and the unusual position on travel pay taken by the employer.

Facts

A group of 19 air security officers (ASOs) worked for AKAL Security, a government contractor that deports people who have been ordered removed from the United States. The detainees are flown on airplanes to their home countries. Since some people aren’t happy to be going home, the ASOs provided security during the flights.

For many of the assignments, the last leg was an “empty” return trip to Miami, where the ASOs were based. Since all detainees had been dropped off, the planes were empty, and the security officers had “free time” on the trips back to the base.

AKAL had a written policy, however, to deduct an hour’s pay for lunch on just the longer, empty return trips to Miami. The policy required all ASOs to disengage from work duties during the meal periods and use the time as they wished.

In practice, AKAL didn’t record actual mealtimes. Instead, it just subtracted one hour from each ASO’s timesheet on the longer, empty flights back to Miami. Notably, an hour’s pay at an overtime rate for many trips going back three years can add up to a meaningful sum. Then, when you multiply the figure by 19 (the number of security officers who sued), the resulting amount can be enough to fight over.

During the empty return flights, the ASOs were free to watch movies, play video games, sleep, or otherwise relax for at least 60 minutes. Since the time was an uninterrupted hour to spend as they pleased, you’d think AKAL could deduct for an unpaid lunch, correct? Wrong. Because of the way it defended against the security guards’ claims, it couldn’t deduct the lunch hours. (This is where the case gets unusual.)

Lower Court’s Ruling

AKAL defended the claims for unpaid lunch hours by agreeing all of the time spent on the long, empty return trips was compensable travel time. By doing so, the company was prevented by the court from arguing the carved-out meal periods were not compensable. Travel time is just that—travel. No work or duties are required.

In short, the court refused to buy what it saw as a type of circular reasoning. If all of the empty return travel was compensable time, the court couldn’t accept AKAL met its burden to show the meal break was “idle time” and thus not compensable. It couldn’t be both compensable time and unpaid “idle time.”

11th Circuit Weighs In

Delving into an issue the 11th Circuit had never considered, the three-judge panel held a “burden-shifting scheme” will apply in future cases on pay for lunch periods:

• First, the employee must show all of his recorded work hours were generally compensable for the day in question, which they normally are.
• Then, the employer bears the burden of proving the carved-out meal periods were “bona fide” idle time and free of work duties.

The panel found the ASO employees had met their burden to show they had performed work for which they were inadequately compensated. How did they do that?

Strangely, not because of any affirmative proof [the employees had] adduced but, rather, because of the way AKAL [had] litigated this case. [The employer] acknowledges—and the parties therefore agree—idle time spent on the Empty Return Leg is compensable travel time.

As the court reasoned, “To show that it can exclude one-hour meal breaks, AKAL must point to something other than the fact that the ASOs were idle on the flights.” The evidence wasn’t enough for the court when balanced against AKAL’s admission the time was compensable as travel time. Elliott Gelber, et al. v. AKAL Security, Inc., Case No. 18-14496 (11th Cir., September 30, 2021).

Takeaways from Unusual Ruling

The facts are unusual, and the holding here that lunch time is compensable won’t be true for most cases. Nevertheless, the way lunch break disputes are evaluated and decided under the burden-shifting scheme will apply to all such matters going forward in our circuit. Notably, a strongly worded dissent to the 2-1 majority opinion may signal the opportunity for an en banc review by the full court. Stay tuned.

Nevertheless, for employers, the key is to make sure employees on lunch hour are away from possible work interruptions such as reading e-mail or answering telephone calls or work questions. The lunch time must be idle and free from work. Make sure employees have at least a full 30 minutes uninterrupted.

The decision was unusual because (1) the employer admitted the time in question was compensable, and (2) the ASOs’ job was to travel, making the travel time analysis a bit confusing. It was hard for the court to accept the guards weren’t working when the job was performed as they traveled.

Best Practices

Travel time. Some general rules on travel time to keep in mind are:

First, travel time occurring during employees’ normal working hours is generally compensable. Thus, an employee who catches a 2:00 p.m. Sunday flight to go somewhere to work the next day has earned three compensable, travel-time hours if he normally works from 9:00 a.m. to 5:00 p.m. on weekdays. The result is true even though the time spent traveling is on a non-workday like a Sunday. And if the individual performs work (e.g., paperwork) while traveling on an airplane, the time is compensable.

Second, an employee’s commute to and from work isn’t compensable time. But, if she comes to your shop or office first to pick up equipment or supplies or even just clock in, the time from the shop on to the jobsite is compensable. At the end of the day, the commute home isn’t compensable unless she must bring something to the office, which makes the commute back there compensable.

Finally, for employees who travel from job to job during the day (e.g., plumbers, pest control workers, lawn care employees, installers), the time is compensable. Note, nothing in the Fair Labor Standards Act (FLSA) prevents an employer and an employee from agreeing on a different rate for travel time, so long as the company pays the minimum wage and includes the time in calculating the base rate for overtime.

Unpaid lunch time. Some general rules on unpaid lunch time include:

First, as long as employees are completely relieved of all work duties, you can instruct them to take a half-hour or full-hour unpaid lunch and not pay for the time. The key is to be able to prove they were relieved from all duties during the lunch. The burden of proof falls on you. (If employees eat at their desks and occasionally answer the phone or respond to e-mails, that’s a problem.)

Second, although not required, most employers give employees two paid breaks during an eight-hour workday. The U.S. Department of Labor (DOL) takes the position the break periods are primarily to refresh the employees so they can perform better when they return to work. Thus, the breaks are primarily for the employer’s benefit and compensable.

Tom Harper is the founder of The Law and Mediation Offices of G. Thomas Harper, LLC, in Jacksonville, Florida. Harper has practiced Labor Relations and Employment Law for over 30 years. He represents a diverse group of companies and organizations in a broad range of employment and labor issues including wage/hour, overtime claims, discrimination claims, FMLA, disability, age and sexual harassment. You can reach him at Tom@EmploymentLawFlorida.com.