Third Circuit Adopts “Predominant Benefit Test” for Determining Whether Time Spent During Meal Break Is Compensable Under FLSA

On November 24, the Third Circuit issued its decision in a Fair Labor Standards Act cases entitled Babcock v. Butler County, __ F.3d __, 2015 U.S. App. LEXIS 20393 (3d Cir. Nov. 24, 2015). In this case, the plaintiffs were correctional officer who sought to be paid for time purportedly spent working during the meal period. In deciding the case, the Third Circuit for the first time endorsed and adopted the “predominant benefit test” for determining whether time spent during a meal break is compensable under the FLSA. A copy of the opinion can be found at: Babcock v. Butler County (Third Circuit Nov. 24, 2015)

According to the Court, the predominant benefit test entails a “necessarily fact-intensive inquiry” and requires courts to “assess[] the totality of the circumstances to determine, on a case-by-case basis, to whom the benefit of the meal period inures.” In an unnecessarily confusing opinion, the Court characterized the predominant benefit test in two different ways: (i) the test “asks ‘whether the officer is primarily engaged in work-related duties during meal periods;’” and (ii) the test’s “essential consideration” asks “whether the employees are in fact relieved from work for the purpose of eating a regularly scheduled meal.’”

The Court “eschewed a literal reading” of the pertinent Department of Labor regulation, which requires that “[t]he employee must be completely relieved from duty for the purposes of eating regular meals” and that “[t]he employee is not relieved if he is required to perform any duties, whether active or inactive, while eating.” 29 C.F.R. § 785.19(a).

In my view, this opinion is disappointing. The Circuit had an opportunity to provide clear guidance on when meal breaks are compensable. Instead, we are left with a wishy-washy legal standard that is characterized differently within the same judicial opinion. What seems clear, however, is that 29 C.F.R. § 785.19(a) is inapplicable within the Third Circuit. (Although even that point could have been made with more clarity; and some explanation for why the Court did not defer to the DOL Wage and Hour Division regulation would have been nice.)

This case reminds me of the Seventh Circuit’s recent opinion in Alvarado v. Corporate Cleaning Services, Inc., 782 F.3d 365 (7th Cir. April 1, 2015). In both opinions, the Judges seem to be heavily influenced by the fact that the workers were unionized, which means that the purported FLSA violation (i) was tolerated by the unions (possibly in exchange for other employee benefits) and (ii) could be addressed during the next round of collective bargaining. As I have said many times, it is extremely difficult to win FLSA cases on behalf of unionized workers, and plaintiffs’ lawyers really need to think twice before filing such cases.

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