Automatic Deduction for Meal Period Violated FLSA

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The 11th Circuit recently affirmed a lower court decision that an employer violated the FLSA with a policy requiring an automatic 1-hour deduction for a meal period.

Many employers across the nation have implemented this sort of policy against advice from most employment law attorneys. So, this is a good time to review your company policies to be sure you are following the law as closely as possible.


Check out the comments made by Circuit Judge Kevin C. Newsom:

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.


Details of the Case


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. 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.


You can read the full text of the case with all arguments here: https://www.courtlistener.com/opinion/5178919/elliott-gelber-v-akal-security-inc/


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Lisa Smith, SPHR, SHRM – SCP

Certified EEO Investigator (EEOC)

Lead Support and Content Chief – HelpDeskforHR.com

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