Maxwell C Livingston
On Call Pay – Wages while on lunch under FLSA (Seventh Circuit Analysis)
Whether you are an employer considering whether your on-call meal period pay policy is sufficient or an employee wondering whether your employer’s policy is sufficient, it is always advisable to consult counsel. In addition, the below synopsis can assist in a starting point:
Meal Period Compensation ABSENT Collective Bargaining Agreement
The Fair Labor Standards Act (“FLSA”) requires employers to pay overtime for each hour worked over forty (“40”) in a given work week. Rest or meal periods of 20 minutes or less are typically considered compensable. See WHD Fact Sheet #22. And, in Wisconsin, and other 7th Circuit states, FLSA requires payment for breaks of 30 minutes or more as well unless the employee is “completely relieved from duty” during his or her meal period(s). See 19 C.F.R. § 785.19(a).
Whether a break truly relieves an employee from duty, is a strictly gray area analysis, that – like other on call pay – depends mostly on the frequency of the interruption and the limitation to travel off-site or otherwise enjoy one’s life. See In re Chicago Police Dep't F.L.S.A. Meal Period Litig., 1995 U.S. Dist. LEXIS 4006, *15, 1995 WL 144500. Every situation requires a unique analysis of whether the work-restriction makes it a bona fide meal period that relieves the employee from all active or inactive duties while on break. See e.g. Culkin v. Glenn L. Martin, Nebraska Co., 97 F. Supp. 661 (D. Neb. 1951).
Whether the employee is required to serve on-site during the meal period is not determinative of whether duties are required during the meal time. See 19 C.F.R. § 785.19(b). However, it is certainly a factor. It is more likely pay will be required when work is required on-site. Whether or not the work is performed during work hours shouldn’t matter here.
In a recent contested decision, it was determined that on-call pay must be paid when an employee is required to take calls and prepare to assist in an emergent matter whether work is performed on-site or offsite – and whether during work hours or not. See e.g. Muir v. Guardian Heating & Cooling Servs., 2017 U.S. Dist. LEXIS 35232, *22, 2017 WL 959028 (“pay[ment required] in accordance with the actual amount of off-hours time they spent on the phone attending to or preparing for emergency service needs.”).
Meal Period Compensation Pre-Emption under Collective Bargaining Agreement
The Collective Bargaining Agreement (“CBA”) pre-empts FLSA in interpretation of compensable pay time during meal times. See Jonites v. Exelon Corp., 2007 U.S. Dist. LEXIS 55400, *22-23, 13 Wage & Hour Cas. 2d (BNA) 832 (“Where the Seventh Circuit has concluded that the collective bargaining agreement's overtime provision, together with a grievance and arbitration procedure, was sufficient to preclude a FLSA claim, there is no genuine issue of material fact that the provisions under the CBA at issue satisfy the Leahy standard for FLSA preclusion.”). This means that the CBA will control the interpretation. However, the CBA must specifically and clearly provide for meal times compensability or the CBA term will not pre-empt an FLSA analysis. See In re Chicago, 1995 U.S. Dist. LEXIS 4006 (“Upon examination of the competing and divergent views of the FOP's abandonment of the meal period issue, it becomes evident that a disputed issue of fact exists as to whether this issue was encompassed in the collective bargaining agreement.”).
The Bottom Line
If you are considering whether pay must be provided during meal times, it is wise to consult competent counsel. However, the main factors in the Seventh Circuit, and particularly in Wisconsin, are whether the contemplated break is anticipated to be on-site or off-site, whether frequent interruptions and restrictions (including on travel) mean that duties are required of the employee(s), and whether or not there is a CBA policy in place specifically concerning compensation of employee(s) during meal and/or break period(s).