Leahy v. City of Chicago, 89 C 9354.

• Decision Date: 29 January 1992
• Docket Number: No. 89 C 9354.,89 C 9354.
• Citation: 785 F. Supp. 724
• Parties: Daniel F. LEAHY, et al., Plaintiffs, v. CITY OF CHICAGO, a Municipal Corporation, Defendant.
• Court: U.S. District Court — Northern District of Illinois

785 F. Supp. 724

Daniel F. LEAHY, et al., Plaintiffs, v. CITY OF CHICAGO, a Municipal Corporation, Defendant.

No. 89 C 9354.

United States District Court, N.D. Illinois, E.D.

January 29, 1992.

Susan Patricia Malone, Chicago, Ill., for plaintiffs Daniel F. Leahy, et al.

Kelly Raymond Walsh, Mary Leone Smith, Kathryn Zeledon Nelson, Jennifer Anne Naber, City of Chicago, Law Dept., Corp. Counsel, Chicago, Ill., for defendant City of Chicago.

MEMORANDUM OPINION AND ORDER

MAROVICH, District Judge.

In this matter Chicago police officers ("Officers") seek overtime pay for their meal breaks pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201— 219.¹ The City of Chicago ("City") has moved pursuant to Fed.R.Civ.P. ("Rule") 12(c) for judgment on the pleadings contending that as a matter of law the Officers are not entitled to overtime pay. For the reasons set forth below, we grant the City's motion and dismiss this matter with prejudice.

BACKGROUND

The Officers are past and present members of the Chicago Police Department assigned to the patrol and traffic divisions. The Officers are assigned to eight and one-half hour shifts. One-half hour of each shift is allotted to an unpaid meal break. The Officers filed suit charging that the City's failure to compensate them for their meal breaks violates the FLSA.² The Officers claim their meal breaks should be compensable under the FLSA because they are not completely relieved of their duties during their meal breaks. Specifically, the Officers claim they are restricted during their meal breaks in the following ways:

a. Officers are required to remain within the district and/or sector of assignment unless prior permission to leave such area is granted by a supervisor.

b. Officers are required to carry their service weapons and remain in full uniform, if on uniform duty, and are required to adhere to all regulations concerning conduct while in uniform, such regulations include requirements that police officer employees assigned to uniform duty wear their uniform hat at all times while outdoors.

c. Officers must report their meal location to the dispatcher and are required during their meal period, upon request, to terminate such meal period to respond to calls for police assistance, to answer questions, and to follow instructions from the dispatcher or superior officers.

d. Officers assigned to a two person unit are to take their meal period with both officers taking such period at the same time and location.

e. Meal periods may not be taken during the last hour of a shift assignment.

f. Police officer employees are required to refrain from conduct deemed by the department to be unbecoming of a police officer while on duty. Such conduct has, on occasion, been defined to include playing golf, reading nondepartment publications, resting or napping, or other conduct deemed by the Department to be inappropriate or tending to reflect poorly upon the uniform.

g. Officers must refrain from the consumption of alcoholic beverages.

h. Officers must respond to requests for assistance or information from members of the public.

i. Officers must refrain from congregating, which is defined that no more than two officers may be present in the same establishment without prior permission.

j. Officers who have assigned portable radio units must maintain the radio units with them and remain in radio contact and respond to calls or requests for information on such radios.

k. Officers are subject to report and review by inspectors and other supervisory personnel.

l. Officers must respond to citizen or police emergencies.

m. Officers not assigned to portable radio units must spend their meal period at a location where they can be reached by telephone, must provide the dispatcher with the telephone number and must respond to calls or requests for information on such telephones.

n. Officers must receive permission from the dispatcher to take a meal period and such permission may be and frequently is denied depending upon the workload of the district and the availability of other police officers to respond to calls.

Officers' Amended Complaint at pages 3-5.

The City argues that the meal break restrictions are not sufficient as a matter of law to establish that the meal periods are compensable work time under the FLSA.

DISCUSSION

A motion for judgment on the pleadings may be granted only if the moving party clearly establishes that no material issue of fact remains to be resolved and that he or she is entitled to judgment as a matter of law. National Fidelity Life Ins. Co. v. Karaganis, 811 F.2d 357 (7th Cir. 1987). The court may consider only matters presented in the pleadings and must view the facts in the light most favorable to the non-moving party. Id. The court, however, is not bound by the non-moving party's legal characterizations of the facts. Id. In considering this motion, therefore, we assume the facts as alleged by the Officers to be true.

The FLSA requires employers to pay overtime to employees who work more than forty hours per week. Section 207(a). However, Section 207(k) creates an exception to the standard wage and hour provisions of the FLSA. (Hereafter we will refer to Section 207(k) as § 7(k).) Under that section, public law enforcement and fire departments can declare work periods from seven to twenty-eight consecutive days. Employees working within a twenty-eight day work period are entitled to overtime if they work in excess of 171 hours within that period.

The City has elected to pay the Officers on the basis of a twenty-eight day work period, and the parties agree that if the Officers work more than 171 hours within that period, they are entitled to overtime pay. The sole issue before us is whether the Officers' meal period is work time which should be included within the 171 hour calculation.

The FLSA does not define what is considered work under the Act; Congress left that decision to the courts. Hill v. United States, 751 F.2d 810, 812 (6th Cir. 1984), cert. denied, 474 U.S. 817, 106 S.Ct. 63, 88 L.Ed.2d 51 (1985). And neither the Seventh Circuit nor any district court in the Northern District has construed the meaning of meal time in the context of an FLSA lawsuit by employees seeking overtime pay for meal breaks against a § 7(k) employer. We will examine two interpretive guides, the federal regulations and analogous cases from other jurisdictions, to assist our inquiry.

Two regulations speak to our issue.³ The first regulation 29 C.F.R. § 553.223(b), provides that mealtime can be excluded from hours worked under the following circumstances:

If a public agency elects to use the section 7(k) exemption, the public agency may, in the case of law enforcement personnel, exclude meal time from hours worked on tours of duty of 24 hours or less, provided that the employee is completely relieved from duty during the meal period, and all the other tests in § 785.19 of this title are met. On the other hand, where law enforcement personnel are required to remain on call in barracks or similar quarters, or are engaged in extended surveillance activities (e.g., "stakeouts"), they are not considered to be completely relieved from duty, and any such meal periods would be compensable. (emphasis added)

29 C.F.R. § 533.223(b) (hereafter cited as § 533.223(b)). The text of section 785.19(a), which is not limited to § 7(k) cases, states as follows:

(a) Bona fide meal periods. Bona fide meal periods are not work time. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating. (emphasis added)

29 C.F.R. § 785.19(a) (hereafter cited as § 785.19(a)). Of note is that both regulations contain the same "completely relieved of duty standard" to determine when meal breaks are considered bona fide meal periods and thus are not compensable. However, the regulations use radically different examples to describe when an employee is not completely relieved of duty. Section 785.19(a), arising from the more general section of the regulations applicable to all FLSA actions and entitled Part 785 Hours Worked, uses as an example of an employee not completely relieved from duty an office employee who is required to eat at his desk or a factory worker who is required to be at his machine while eating. § 785.19(a). In contrast, § 553.223(b), arising from the specific section of the regulations applicable to § 7(k) employers and entitled Part 553 — Application of the Fair Labor Standards Act to Employees of State and Local Governments, uses as an example of an employee not completely relieved from duty a law enforcement officer who is required to remain on call in barracks or similar quarters, or is engaged in extended surveillance activities. Neither of these examples is analogous to our situation; however, both regulations, and their respective examples, are cited by analogous cases from other jurisdictions.

Cases from other jurisdictions have attempted to define when an employee is completely relieved from duty so that the meal break is not considered work time. These cases reach a variety of conclusions based upon the specific type of employment and the nature and number of restrictions on the meal break. We have reviewed all of the cases cited by the parties, and those cases for the most part can be grouped into four broad categories.

The first category includes postal workers. See, e.g., Hill v. United States, 751 F.2d 810 (6th Cir.1984), cert. denied, 474...