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Judge rejects federal test on meal break compensability

Looks to ‘relieved of all duties’ test in Mass. regs

The test for determining whether a meal break is compensable under the Massachusetts Wage Act should be whether an employee was relieved of all duties during the break, a judge from the Superior Court’s Business Litigation Session has ruled.

Plaintiff security guards brought a class action lawsuit against defendant Longwood Security Services and its president, alleging that the employer failed to pay them full wages earned because they remained on duty during the 30-minute meal breaks that were automatically deducted from their shifts.

Citing a leading interpretation of the federal Fair Labor Standards Act, the defendants argued that the test for compensation should be whether an employee’s meal break time is spent predominantly for the benefit of the employer or the employee.

But Judge Edward P. Leibensperger rejected the test used in federal court and denied the defendants’ motions for summary judgment and to decertify the class.

“[W]here the plain, unambiguous language of the Massachusetts statute and the Massachusetts regulations governs the legal standard for liability, there is no reason to draw on FLSA interpretation,” the judge wrote. “Here, the definition of ‘Working Time’ in the Massachusetts regulations is unambiguous. No further interpretative guidance is necessary or appropriate. The governing law is the ‘relieved of all work-related duties’ test as defined in the regulations.”

The eight-page decision is DeVito, et al. v. Longwood Security Services, Inc., et al.

Deference debated

Nicholas F. Ortiz of Boston, who represented the plaintiffs with Boston’s Elizabeth A. Ryan, said the decision will help prevent employers from stacking the deck against employees to get “free work.”

“Employers can’t give employees duties on their breaks and not pay for it,” Ortiz said.

Stephen S. Churchill of the Fair Work law firm in Boston agreed. He said many employers use “illusory lunch breaks” to extract free labor from hourly workers.

“The court’s decision provides an important tool for challenging that type of wage theft,” he said.

But management-side attorneys whom New England In-House spoke with said they were incredulous and that Leibensperger should have adopted the test used to answer the same question in federal court, especially considering the substantial similarity between state and federal wage-and-hour regulations and the complete absence of Massachusetts appellate guidance on the issue.

Boston lawyer Patrick Driscoll Jr. and Scott M. Carroll of Quincy represented the defendants. They said they plan to seek an interlocutory appeal of the summary judgment decision.

Carroll said he disagrees with the judge’s conclusion that the Massachusetts regulations defining working time are unambiguous. Carroll said he also found it confusing that the judge stated in a footnote that opinion letters from the Department of Labor Standards and attorney general cited by the plaintiffs “are entitled to substantial deference,” while a more recent opinion letter from the Department of Labor Standards states that federal law should be used for guidance in interpreting the state definition of “working time.”

Diane M. Saunders of Boston said the decision will frustrate employers, especially large ones.

“The ‘relieved of all work-related duties test’ that the court adopted now pits state law against federal law, which uses the ‘predominant test,’” she said. “For regional and national employers trying to design uniform, legally compliant pay policies and systems across their workforce, this type of state law distinction makes it impossible.”

Not only will it make compliance more difficult and administratively expensive, Saunders said, but it could also create employee relation issues when employees in one state are subject to different terms and conditions than employees in the same job title in other states.

Other defense lawyers said they were not surprised by Leibensperger’s decision.

“The language in the Massachusetts regulations is very clear on this point, and for as long as I’ve been practicing I’ve advised clients that employees on unpaid breaks must be relieved of all duties and free to leave the work premises,” said Kimberly Klimczuk of Springfield. “Otherwise, it’s not a true break and the employer is obligated to pay employees for that time.”

The use of a time-tracking system that requires employees to clock in and out also could have helped avoid the lawsuit, or at least helped limit the size of the class, said Cambridge practitioner Todd J. Bennett.

While both state and federal regulations are substantively similar and include language suggesting employees must be completely relieved of duties for it to qualify as an unpaid break, Ortiz said there is a good reason why such language would be given more force in state court than federal court.

“The federal rule … has been classified as an ‘interpretative rule’ by the federal courts, as it was not promulgated pursuant to notice-and-comment under the Administrative Procedures Act,” he said. “In contrast, the state rule was promulgated as a regulation under state law and has the force of law.”

That is one of the reasons Ortiz and other plaintiffs’ lawyers prefer to keep their wage-and-hour cases in state court in Massachusetts whenever possible. Bennett commended the plaintiffs’ lawyers in DeVito for doing that.

“It’s a lesson to newer lawyers to avoid the tendency to throw in everything but the kitchen sink,” Bennett said. “They could have thrown in FLSA claims; the defendant would have removed to federal court, and there would have been a different result. In this situation, if you’re in federal court, in all likelihood they would have applied the predominant test.”

Bennett also praised the defense lawyers for pressing Leibensperger to determine on summary judgment which test for compensable time should be applied in the case. In addition to resolving DeVito, the ruling will help defense lawyers better advise their clients, he said.

From a practical perspective, though, Saunders said advice resulting from DeVito will lead to more questions than answers.

“Would the result in this case have been different if the security guards had been permitted to leave the premises, but were still required to carry and answer their phones while on break?” she asked. “In an age where more and more employees are working remotely, and where the lines between life and work can be difficult to distinguish, a test like this will be difficult for employers to manage.”

“For regional and national employers trying to design uniform, legally compliant pay policies and systems across their workforce, this type of state law distinction makes it impossible.”

— Diane M. Saunders, Boston

Need an answer

The plaintiffs were security officers with Longwood, which provides services at locations such as housing developments, hospitals and colleges. Longwood’s meal break policy allowed guards to take a 30-minute unpaid break but required them to remain in uniform, stay within their assigned sector, and keep their radios on and respond to calls.

While it is undisputed that the meal breaks were unpaid, the defendants deny the plaintiffs’ contention that the meal break was assumed and automatically deducted from officers’ pay.

The plaintiffs sued under the Massachusetts Wage Act, alleging that they should have been compensated during the meal breaks because they remained on duty.

After attempts to obtain summary judgment were denied twice, the parties persuaded Leibensperger that it was necessary to determine early in the case which test for compensable time should be applied to the claims under Massachusetts law.

Longwood moved for summary judgment and decertification of the class based on its argument that the applicable test should be whether the meal breaks were predominantly for the benefit of the employer or the employee.

No helping hand needed

While the Massachusetts Wage Act does not define “working time,” the state has promulgated regulations that do. They state that working time “includes all time during which an employee is required to be on the employer’s premises or to be on duty, or to be at the prescribed work site or at any other location, and any time worked before or after the end of the normal shift to complete the work. Working time does not include meal times during which an employee is relieved of all work-related duties.”

The regulations also state that on-call time is compensable “unless the employee is not required to be at the work site or another location, and is effectively free to use his or her time for his or her own purposes.”

Arguing that the Massachusetts wage statute essentially was intended to be identical to the FLSA, the defendants urged Leibensperger to adopt the “predominant test” used in federal court, which asks whether an employee is primarily engaged in work-related duties during a meal break.

While a U.S. Department of Labor regulation also states that an employee “must be completely relieved from duty” to have a bona fide unpaid meal time, Leibensperger wrote that federal courts have eschewed a literal application of that language in favor of the predominant test “because the federal regulations, unlike the Massachusetts regulations, are considered for guidance, only, and not as controlling law.”

Absent ambiguity in the applicable Massachusetts laws and regulations, Leibensperger said there was no reason to lean on federal FLSA caselaw. He said he disagreed with a U.S. District Court judge’s determination in Raposo v. Garelick Farms LLC that “all work-related duties” is a term lacking a plain meaning.

“There is no ambiguity that would cause the court to go any further,” Leibensperger wrote. “The thirty minute meal time is compensable unless the employee is relieved of all work-related duties. It will be for the finders of fact to determine the terms, rules and practices of plaintiffs’ employment and whether plaintiffs were relieved of all work-related duties during the meal breaks. The regulations provide the governing law.”

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