Gelber v. Akal Sec., Inc.

• Decision Date: 30 September 2021
• Docket Number: No. 18-14496,18-14496
• Citation: 14 F.4th 1279
• Parties: Elliott GELBER, All Others Similarly Situated, Ruben Yero, Sigfredo Hernandez, Monica Vila, Fara Diaz, Jorge Agular, Cassandra Baker, Sylvia Batista, Sandra Ameneiro, Jean Valbrum, Angel Lopez, Carlos Tolentino, Magalie Santiago, Luis Pagan, Larezo Morera, Ruben Catala, Rey Rijos, Jennifer Maciolek, Alejandro Melo, Plaintiffs-Appellees, Cross-Appellants, v. AKAL SECURITY, INC., Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

14 F.4th 1279

Elliott GELBER, All Others Similarly Situated, Ruben Yero, Sigfredo Hernandez, Monica Vila, Fara Diaz, Jorge Agular, Cassandra Baker, Sylvia Batista, Sandra Ameneiro, Jean Valbrum, Angel Lopez, Carlos Tolentino, Magalie Santiago, Luis Pagan, Larezo Morera, Ruben Catala, Rey Rijos, Jennifer Maciolek, Alejandro Melo, Plaintiffs-Appellees, Cross-Appellants,

v.AKAL SECURITY, INC., Defendant-Appellant, Cross-Appellee.

No. 18-14496

United States Court of Appeals, Eleventh Circuit.

September 30, 2021

Daniel M. Samson, Samson Appellate Law, Miami, FL, Manuel Arteaga-Gomez, Grossman Roth Yaffa Cohen, PA, Coral Gables, FL,Matthew Seth Sarelson, Dhillon Law Group, Inc., Coral Gables, FL, for Plaintiffs-Appellees.

Jenna Rassif, Valerie L. Hooker, Tony H. McGrath, Jackson Lewis, PC, Miami, FL, for Defendant-Appellant.

Before MARTIN, NEWSOM, and BRANCH, Circuit Judges.

NEWSOM, Circuit Judge:

This is an unusual case. It presents a seemingly straightforward question: Under the Fair Labor Standards Act, may an employer automatically deduct one-hour meal periods from its employees’ otherwise compensable overtime? As we will explain, given the peculiar way in which this particular case has been litigated, the answer here is no. We therefore affirm the district court's decision.

I

Akal Security is a government contractor that repatriates persons ordered removed from the United States. It transports detainees on airplanes—both domestically, from one holding facility to another, and internationally, from the United States to the detainees’ home countries. To ensure the safety of its flights, Akal staffs them with air security officers (ASOs).

Once the detainees have been transported to their respective destinations, the ASOs are required to return to the United States—here, to Miami—aboard the same aircraft. Because these return flights—"Empty Return Legs"—carry no detainees, the ASOs have few affirmative duties during them. Accordingly, they can sleep, meditate, play video games, or watch TV on their flights home. On arrival in Miami, the ASOs have to unload and clean the plane and perform other minor administrative duties to prepare for the following day.

Importantly here, Akal acknowledges that under the Fair Labor Standards Act, it has to pay its ASOs for overtime spent on the Empty Return Legs, and it generally does so. See Br. of Appellant at 31; Reply Br. of Appellant at 13; Oral Arg. Tr. 7:40–8:07. But for Empty Return Legs lasting longer than 90 minutes, Akal has a different policy. For those flights, Akal automatically deducts one hour from each shift as a "meal period." In relevant part, Akal's policy states: "There is a mandatory un-paid 1 hour meal period on each shift. This meal period will be taken by all ASOs and Leads on the return leg of each mission." The policy instructs ASOs to disengage from work duties during those "meal period[s]" and to use their time as they wish. Here, Akal didn't record actual meal periods, but instead, simply subtracted one hour from each ASO's timesheet.

Elliot Gelber and other ASOs sued Akal under the FLSA for unpaid wages. The district court granted summary judgment to Gelber, holding that Akal's automatic "meal period" deductions violated the Act. Then, following a bench trial, the court found that Akal had acted in good faith and hadn't willfully violated the FLSA.

The principal question presented on appeal is whether Akal was entitled to make the challenged meal-period deductions from otherwise compensable work. We hold that it was not and that, in doing so, Akal violated the FLSA. We must also decide whether the district court correctly found that Akal acted in good faith and not willfully. We conclude that it did.

II

The FLSA requires employers to pay overtime wages to employees for all "hours worked" over 40 per week. See 29 U.S.C. § 207. To determine, as a general matter, whether the employee's time constitutes "work[ ]" within the meaning of § 207, the Supreme Court adopted what has since been dubbed the "predominant-benefit test": Time spent at the employer's behest is "work" when it is "predominantly for the employer's benefit." Armour & Co. v. Wantock , 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118 (1944). The Department of Labor has also promulgated implementing regulations, see generally 29 C.F.R. § 785, that provide guidance in interpreting and applying the term "hours worked" in specific situations—including, as relevant here, meal breaks.¹ Specifically, 29 C.F.R. § 785.19 sets forth the Department's views about whether meal breaks are "bona fide" and, thus, whether they constitute compensable work. It states that an employee "must be completely relieved from duty for the purposes of eating regular meals" and, further, that the employee "is not relieved if he is required to perform any duties, whether active or inactive, while eating." 29 C.F.R. § 785.19 (emphasis added). This Court has "adopted the exclusion standards of § 785.19 as an appropriate statement of the law." Kohlheim v. Glynn Cnty. , 915 F.2d 1473, 1477 n.20 (11th Cir. 1990).

Although these principles are easily stated, two difficult issues arise in this case, both critical to its resolution. First, who bears the burden of proof? Must Gelber and the ASOs show that they were in fact performing "work[ ]" during meal periods, or must Akal instead show that it is entitled to exclude a meal period from compensable time? Second, what standard does § 785.19 embody, according to our prior panel precedent in Kohlheim ? For reasons we will explain, we answer those questions—at least as they present themselves in this case—as follows: (1) Akal bore the burden (2) to show that the ASOs were "completely relieved from duty for the purposes of eating regular meals." 29 C.F.R. § 785.19.²

A

Begin with the burden. Ordinarily, a party seeking overtime pay has the burden of "proving that he performed work for which he was not properly compensated." Anderson v. Mt. Clemens Pottery Co. , 328 U.S. 680, 686–87, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). Given that § 785.19 interprets the phrase "hours worked" in § 207 —and given that whether a meal break is compensable depends on whether it was "work[ ]" in the first place—it arguably follows that the employee should bear the burden to show that he was working during a meal period. But unlike the typical case of unpaid overtime, which might involve, say, record-keeping, see, e.g. , Bailey v. TitleMax of Georgia, Inc. , 776 F.3d 797, 801–02 (11th Cir. 2015), a meal break takes place within a period of time already deemed compensable and, therefore, feels more like an exception to the requirement of overtime pay. In other words, it's a carveout from an employee's workday.

These two competing rationales have led the courts of appeals to divide over the burden-of-proof question in meal-break cases. Compare Hertz v. Woodbury Cnty. , 566 F.3d 775, 783–84 (8th Cir. 2009) ("Mealtimes ... are not exempt from compensation, but rather they are not compensable in the first instance."), and Myracle v. Gen. Elec. Co. , 33 F.3d 55 (6th Cir. 1994) (unpublished table opinion) (similar), with Bernard v. IBP, Inc. of Neb. , 154 F.3d 259, 265 (5th Cir. 1998) ("The employer bears the burden to show that meal time qualifies for this [meal time] exception from compensation."), and Roy v. Cnty. of Lexington , 141 F.3d 533, 544 (4th Cir. 1998) (similar). Although this Court has addressed meal periods under the FLSA, we have never squarely decided who bears the burden of proof. For reasons we will explain, we hold that a burden-shifting scheme applies in meal-break cases and that, once an employee satisfies his burden by showing that his logged work hours are generally compensable, the employer bears the burden of proving that the carved-out meal periods were bona fide. In the particular circumstances of this case, Akal bore the burden to show that it was entitled to automatically deduct an hour from the ASOs’ overtime pay.³

Our conclusion follows from the Supreme Court's decision in Anderson . There, employees of a pottery plant sued the plant for undercompensating them. 328 U.S. at 682, 66 S.Ct. 1187. The employees were required to punch in and out at the beginning and end of each shift. Id. at 682–83, 66 S.Ct. 1187. But rather than compensate the employees for all of the time logged on their cards, the plant counted working time from the "succeeding even quarter hour after employees punch in" to the "quarter hour immediately preceding the time when they punch out." Id. at 683, 66 S.Ct. 1187. Thus, an employee who punched in at 6:46 a.m. and out at 12:14 p.m. was paid only for work from 7:00 a.m. to 12:00 p.m., rather than, as the employees believed was proper, for the entire period. Id. at 683–84, 66 S.Ct. 1187. In reversing a judgment for the employers, the Supreme Court held that the employees could be awarded for the entire duration—even though they couldn't show that they were always and necessarily doing "productive work" when they were punched in. Id. at 686–88, 693, 66 S.Ct. 1187. The Court explained that once an employee has shown that "he has in fact performed work for which he was improperly compensated," the "burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence." Id. at 686–87, 66 S.Ct. 1187.

The issue of automatic deductions for meal periods in many ways resembles the record-keeping situation in Anderson , and we apply Anderson ’s burden-shifting rule here. In Anderson , the Court concluded that the employees had shown that their "preliminary activities after arriving at their places of work" had to be "included within [their] compensable workweek." Id. at 692–93, 66 S.Ct. 1187. Accordingly, the Court held that the burden shifted to the employer to show that its automatic quarter-hour deductions were justified. Id. at 693, 66...