A Fair Labor Standards Act case involving angry prison guards reminds me of a dispute in the courts regarding the correct rule to apply in determining whether employers are required to pay employees for meal periods.  Remember whether the FLSA applies to tribal employers is an open question generating an argument that it applies and the opposite argument that it does not apply.  If the FLSA applies, or if your tribe meets the requirements of the law, whether meal periods are compensable for non-exempt workers is impacted by two different interpretations of the rule.  The rule declares that if employers do not pay for meal periods, non-exempt employees must be relieved of their work duties during the meal period.  No work no pay.  But what if employees are relieved of their work duties but the employer imposes work restrictions during the meal period?  Does that change the analysis?  To answer that question, let’s return to the angry prison guards.

Prison guards sued their employer because the guards were not paid for their meal periods but were required to be near emergency equipment, respond to emergencies, stay at work and remain in uniform.  The court rejected the guards’ argument and claim for backpay for the employer’s failure to pay for the meal periods.  In rejecting the guards’ claim, the court evaluated whether the employer’s restrictions dominated the employees’ meal period or were the employees able to enjoy their meal periods without significant restriction. This is a fact based analysis focused on the actual restrictions imposed.  That is the rule for employers outside of the 9th Circuit Court of Appeals.  The 9th Circuit applies a more assertive rule on employers when it asks “Is the employee completely removed from work duties during meal periods?”

The 9th Circuit covers employers in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington and may have ruled differently for the prison guards by applying a more assertive test (completely removed from work duties) than the other federal circuit courts.  In other words, employers in the 9th Circuit have to be more careful in imposing restrictions on non-exempt employees if the employers do not compensate those employees for meal periods.

Recommendation:  For non-exempt employees, whether in the 9th Circuit or not, if meal periods are not compensable, minimize employee restrictions during meal periods.  If you do impose some restrictions, consider a rule declaring that employees cannot sit at their desks (or work areas) during meal periods.  Removing employees from their desks during meal periods minimizes the opportunity for employees to claim they were working.