Brooks v. Whaley, 41578
| Decision Date | 08 April 1980 |
| Docket Number | No. 41578,41578 |
| Citation | 613 S.W.2d 656 |
| Parties | Samuel BROOKS et al., Plaintiffs-Respondents, v. Donald H. WHALEY et al., Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Mark H. Neill, Raskas, Ruthmeyer, Pomerantz & Wynne, Jerome F. Raskas, John C. Garavaglia, St. Louis, for defendants-appellants.
Karen C. Moculeski, C. John Pleban, St. Louis, for plaintiffs-respondents.
Plaintiffs, commissioned police officers of the City of St. Louis (hereinafter "policemen"), filed this declaratory judgment action against the Board of Police Commissioners of the City of St. Louis (hereinafter "board"). Policemen contend they are entitled to overtime compensation for the first thirty minutes worked beyond their eight-hour tour of duty. The board contends the policemen work only eight hours per shift after their thirty-minute meal time is excluded from their work day. The trial court found the denial of overtime was contrary to statute and the policemen were to be compensated for authorized overtime when, after May 1, 1977, accumulated overtime exceeds forty hours. We affirm the judgment.
Section 84.110, RSMo. 1978, provides in pertinent part, "Eight hours shall constitute the time of regular service for the members of the police force for such cities during any one day of twenty-four hours...." Section 84.160, RSMo. 1978 (emphasis added), provides as follows:
Section IV of Special Order 78-S-18, promulgated by the Chief of Police, provides that only authorized overtime may be earned and further provides that overtime will not be granted for the first thirty minutes following the end of a scheduled watch, thereby requiring policemen to work a minimum of thirty-one minutes past the end of a scheduled watch to be entitled to overtime.
Policemen are assigned to one of three eight-hour watches, either 7:00 A.M. 3:00 P.M., 3:00 P.M. 11:00 P.M., or 11:00 P.M. 7:00 A.M. A standing order of the Bureau of Field Operations provides that policemen will not be relieved until twenty minutes past the end of their scheduled watch.
Policemen are given a thirty-minute meal period (designated a Code 7240) during each watch pursuant to the provisions of Special Order 73-S-23.4, promulgated June 8, 1978 by Chief Camp. The dispatcher must be contacted when an officer takes a meal period in order to take the officer out of service. If the volume of assignments will not permit the officer to be taken out of service, the dispatcher may require the officer to remain in service and take his meal period at a later time.
An officer may not take a meal period at a private residence. The meal period must be taken within the confines of the officer's beat or at the station house unless the officer obtains permission from his superior to leave the beat to purchase a meal in the event that there is no acceptable eating establishment within the beat. In the latter case, the dispatcher must be advised of the officer's destination.
Officers are subject to call by their superiors, are required to respond to emergencies during their meal periods, and may not remove their guns or uniforms while eating in public places. Officers are "taken out of service" during the meal period. If an officer responds to an emergency or is called to duty during his meal period, the meal period is rescheduled at a later time, or, if the meal period is missed, the officer receives thirty minutes of overtime pursuant to Special Order 78-S-18, Section IV(J).
The first issue before the court is whether the thirty-minute period given policemen constitutes part of the "(e)ight hours ... of regular service" pursuant to § 84.110, RSMo. 1978. If the meal period is part of their regular service, policemen work in excess of eight hours per day; if the meal period is not part of their regular service, policemen work less than eight hours per day. The question of whether the meal period is part of their regular service is dependent upon the answer to the question, "Were policemen working and performing services for board during their thirty-minute meal period?"
Section 84.110, RSMo. 1978, is silent, and there are no Missouri cases, concerning the inclusion of meal periods in the phrase "(e)ight hours ... of regular service." Cases from other jurisdictions, however, have dealt with the issue of whether meal periods are work time. The authorities are about evenly divided. This court could go either way in the case at bar and not be far afield.
Authorities stating that meal periods are not generally considered work time are: Joseph G. Moretti, Inc. v. Boogers, 376 F.2d 27 (5th Cir. 1967); Rapp v. United States, 340 F.2d 635 (Ct.Cl.1964); Erickson v. City of Waltham, 2 Mass.App. 436, 314 N.E.2d 139 (1974); and McElroy v. City of New York, 50 Misc.2d 223, 270 N.Y.S.2d 113 (Sup.Ct.1966), aff'd mem., 29 A.D.2d 737, 287 N.Y.S.2d 352 (1968). This rule is stated in regulations issued under the Fair Labor Standards Act, 29 U.S.C.A., § 206-07 (1973 and Supp.1974-78) as follows:
Wage and Hour Division Rest and Meal Periods, 29 C.F.R., § 785.19 (1979).
To include a meal period within work time, the performance of substantial duties must be shown. Bowling v. United States, 181 Ct.Cl. 968, 980 (1967). In...
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Perkins v. Schicker
...worked. The trial court granted plaintiffs' prayer for relief and this court affirmed the trial court's judgment. See, Brooks v. Whaley, 613 S.W.2d 656 (Mo.App.1980). There, we held that while taking their thirty minute meal break, policemen were on duty and consequently the special order o......