deduCtioNofMealbreakviolatesflsaiN “ uNusualCase ” labor & employment law Section Chairs : AmandaBiondolino – SassLawFirm & LaKishaKinsey-Sallis – Fisher & PhillipsLLP
thisdecisionresultedina splitwiththefifthCircuit , whichheldthattheexact sameemployerdidnot violatetheflsaunder almostidenticalfacts .
On September 30 , 2021 , the Eleventh Circuit held in Gelber v . Akal Sec ., Inc ., 1 that an employer violated the Fair Labor Standards Act ( FLS ) by automatically deducting one-hour meal periods from its employees ’ otherwise compensable travel time . This decision resulted in a split with the Fifth Circuit , which held that the exact same employer did not violate the FLSA under almost identical facts . 2
This appeal stemmed from a collective action filed by an Air Security Officer ( ASO ) against Akal Security , Inc . ( Akal ). 3 Akal is a government contractor that transports detainees to their home countries . 4 Akal ’ s ASOs are charged with accompanying detainees on these flights . Once the detainees reach their final destination , ASOs must take a return flight home . Though ASOs have few , if any , affirmative duties during these return flights , Akal compensated ASOs for the time spent on these flights except for a one-hour meal period that Akal automatically deducted . Pursuant to his lawsuit , the ASO alleged that Akal willfully violated the FLSA by automatically deducting these one-hour meal breaks . 5
The District Court for the Southern District of Florida granted summary judgment for
the ASO , concluding that Akal ’ s automatic meal break deductions violated the FLSA . 6
On appeal , 7 the majority concluded that “ in the particular circumstances of this case ,” Akal bore the burden to show that it was entitled to exclude the meal period and that it did not meet this burden . 8 Notably , the majority reached their decision not based upon affirmative proof provided by the ASO , but rather because of the way Akal litigated this case . 9 According to the majority , Akal had to point to something other than the fact that the ASOs were idle on the flights . 10 Instead of doing so , Akal repeatedly “ hammer [ ed ] the point ” that ASOs had idle time throughout the return flight . 11 The majority deemed this concession detrimental to Akal ’ s case . 12
Importantly , the majority notes the unusual circumstances of this case at the outset and throughout its opinion , 13 seemingly suggesting that employers facing analogous legal challenges may be able to distinguish the facts of their case and raise alternative arguments in their defense . Whether this decision is as narrow as the opinion arguably suggests remains to be seen . n
1
14 F . 4th 1279 ( 11th Cir . 2021 ).
2
Dean v . Akal Sec ., Inc ., 3 F . 4th 137 , 139 ( 5th Cir . 2021 ).
3
See Gelber v . Aral Sec ., Inc ., No . 16-23170-CIV , 2017 WL 6987705 , at * 1 ( S . D . Fla . Oct . 17 , 2017 ).
4
Gelber , 14 F . 4th at 1281 .
5
See Gelber , 2017 WL 6987705 , at * 1 .
6
Id .
7
The ASO also appealed the Court ’ s holding that Akal did not willfully violate the FLSA . See Gelber , 14 F . 4th at 1288 . The majority ultimately affirmed the Court ’ s decision on this point . See id . at 1289 .
8
Id . at 1283 .
9
Id . at 1283-84 .
10
Id . at 1285 .
11
Id .
12
See id .
13
See , e . g ., id . at 1281 .
Author : Ashley T . Gallagher - Johnson Jackson PLLC
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