represent a college security and this appeal this appeal concerns one afford nearly identical cases that have been filed across three jurisdictions circuit a case pending in the western district of louisiana now on appeal the th circuit the th circuit two cases both in the district of phina one has been appealed to the th circuit and finalize is stayed in the district of phoenix pending the outcome of multiple appeals and this case currently pending before you in the th circuit the issue at its most bare is whether employees who work sites or airplanes can happen if i you know periods the conclusion to this issue is really it's quite simple so long as fair labor standards act regulation implemented by the department of labor are twenty nine c f r section seventy five point four one is accorded the great weight that this court the th circuit employee who drives an airplane or is required to ride to their end as an assistant or helper is working while riding except during a bona fide meal period so the st of these four nearly identical case says to reach modality was alonzo hearses a cow and that was in the th circuit in that case the th circuit affirmed the district court in phoenix on summary judgment in favor of a cow on virtually identical facts and applying the same legal standard that the th circuit applies which is the completely relieved from duty standard for determining whether meal periods should be compensated so in that case the distance question so yes there is is just so everybody is on the same page i was looking through papers in front of me but i want to make sure that i heard you correctly so does everybody even agree that th duty yes when you say i mean for a broad three judge panel purposes the current standard is the standard the governs this case right correct and we can do about that that is the standard there is nothing you can do about that that is the standard and it is a standard that wholly allows this court to rule in favor of a callous security in this case there is no need in this case for the court to seek to change that standard for us to seek on bhangra view to change that standard the completely relieved from duty standard and the fact that issue in this case wholly way in favor of  security emerging successfully from this case summary judgment the night yes is what about the latter half of that regulation is not just completely relieved from duty but for the purposes of eating a regular meal how can you when you just sort of or when you just arbitrarily our how can we say that that our reply is for the purpose of taking a meal so there is nothing arbitrary about the hour being shaved out any time that these a s o are traveling internationally they are returning to miami  record reflects that ninety nine percent of the time that they're returning to miami they are returning without detainees on the flight and every time that they are returning without detainee's on the fly internationally  flights are ninety or greater than ninety minutes the meal period policy that all of these a guess those signed and agreed to in their offer letters l a as well as what their union agreed to in the collective bargaining agreement explicitly states that on those return flights they will have a one hour meal period that will not be compensated so every time those a s o have an international flight which is part of the schedule that they were alerted to in advance of the week they will have a one hour period they are aware of that and they agreed to it when they accepted the position and find their offer letters and i pick a judge  question their yes what is the relevance of the fact that the conditions on the plane are probably unsanitary for the purpose of taking a meal requirement if an employee can't you don't heal because  else to eat when the detainee's are not on the plane there is testimony that the a f those will bring their own personal pillows and blankets some of that will die down across the seat to sleep on the plane and so any the so called meal hour from the remainder of the plane it sounds to me like the whole time they're just kind of put loose and fancy free watching movies and sleeping or whatever so what distinguishes mealtime from the other part of the return unique about meal time right so in this particular employment scenario these a s o have the benefit of not having to perform duties for the and entire empty return lack a cow could have imposed duties on these eight s those for the entire empty return lag had they not had the meal period policy in place for example the time that they are on that plane returning back to miami as work time section seventy five point four one tells us that for employees who are required to ride on a plane as part of their work that's work time and so a cow could have absolutely impose some type of duty on them for example you'll see in some of the case law the employers will impose on their employees the obligation to read policies that are related to work or engage in training watch training videos that are related to work akala opted not to require their s o s to do that and instead allowed their s o s to relax and enjoy that time the whole time they were returning on the empty return so the a here enjoyed the benefit of that free time for two and a half hours and they were lucky they were paid for an hour and a half of that free time and only one hour of that was an unpaid meal period however cow to have elected to it could have said hey look for the one and a half hour that we're paying you we're actually going to impose work duties on you how just elected not to do that certainly it  appellants the main appeal boiled to its assistance regards whether a bona fide meal break can be taken under the unique facts and circumstances of this airplane so one can imagine under seventy five  airplanes where a bona fide meal break can be taken but for example an airplane that has crew quarters no such thing on this plane and determining whether or not a bona fide meal break occurred is determine under tot circumstances as a practical matter whether or not a bona fide milde occurred those factors the factors here are that the assholes are required to stay at their work station this is like the factory floor not the factory itself they stay in the same specific work place whether or not they're on a break or not they can't do any personal business related to the confines of an airplane they don't actually eat a meal because it's the end of the day and they had to eat their meal during the during the missions they have duties when they return to unloading unloading shackles and handcuffs and water bags from the plane they're ready for work the next day by having been on the plane so there's an available pool of workers as determined in call this court's decision and all i'm and as this court noted the plane is unsanitary there's vomit and urine odors the only circumstance supporting a cow is there's no detainees on the plane during the empty return leg but that just means there's less work not know where their own corporate representative janet gunn testified that part of the job is entire mt return leg is a meal break with the department of labor regulations perfect permit yes under a callous legal analysis and there are laser like focus on the fact there's no detainees aboard nothing would prevent them there's no regulation that says a meal break is one hour there's no time on it no one is required to give a meal break the regulations don't require the meal break and so they could under the legal analysis that because there is no detainees on board no work is being done there is no difference between non break time and break time and they could arbitrarily determine instead of docking one hour  responsibility on the empty return it's correct that's true they have they essential or the testimony is they have ten to fifteen minutes of of work and the rest is they don't have affirmative duties but as this court stated in cola and then is in the regulation even inactive work can be determined as work and so the in a they are essentially engaged to in which it's due to its argued that they were engaged to wait and so they're out there a century on this plane although they're doing nothing on the plane they have duties when they get to the tarmac and so the question is whether or not they're working while traveling because they are sensually again they're required to be on the plane that's one factor under the taliban of circumstances they don't actually to eat a meal and it know just whether or not you eat a meal is not dispositive that's because it's this is all decided under the taliban of the circumstances and even if that circumstance was shifted to a college side i would still argue that they can't ok every time you know you get on the plane for the return flight you know this hour is set aside for the purposes of eating a regular meal you can't do anything else during that time but eat regular meal then do they get sent to duct i don't think so your honor because again all of the factors that i've just listed would still apply if how they say don't do any work that is essentially what they say but that they're not actually doing anything different imagine one if an a s o it's a meal it takes five or ten minutes to eat at the they bring on you know a lunch bag and they're still eating it and unsanitary playing there still it's not regularly scheduled that and more most importantly they actually tries to run some sort of deception in which every day they did note that the meal break occurs from twelve pm to one pm when that never happens because there's detainees aboard and so again i mean you're here change in my hypothetical  are in the same position under your hypothetical there they are required to stay at their workplace to eat they don't there's no supper or station their stay on the plane in the same space that they're in and so i think so it's not as if they're changing it to seek is not the same as going to let's say on the factory floor in a factory there's a separate space for where you can take your luggage and even in those cases the factors would be again they're confined to their work space whether it's one whether it's a seat in the front of the airplane or in the back of the airplane the entire airplane is the jobsite it's there is no stop or crew quarters i would agree that if there was a separate kook orders and they were told to go we would lose probably although there would still be other factors to consider but assuming the or crew quarters it would be a very different story and it would be very difficult to argue that we would win under those circumstances or if there were as in the trucking cases which is what seventy five point four one is generally in the case in the authority such as nancy cited by both parties if there are sleeper berth on the on the truck and you go into a sleeper berth even though it's a cramped confined space than that still a break employees who are quote require to ride on the plane i mean you can't step off so you go you might and that's just why it's one that's why being confined to the airplane is one of many circumstances that we argue of the circumstances and again i can imagine scenarios in which in which there could be a bonafide meal break for airline employees such as if  a sleeper berth like assuming there was some sort of a period where they could go and lay down and rest comfortably also a basically what you're saying is they would have to rebuild the plane in order to enforce this unpaid meal hour is all i'm saying that well what i'm no your honor i apologize if that's how it came back and i can't think of another way that you're saying that you lose other out there in one so me but i'm there isn't one but the regulation that's how you would harmonize that regulation is that there one can imagine airplanes in which a bonafide meal can be taken or another example would be a pilot obviously can't have a bonafide meal break when they're driving the plane and so what this regulation seems to contemplate is let's say a pilot has a ten hour shift and they fly for two hours and then have a two hour break there can be a they can have a break during that downtime where they're at the airport so what i'm saying is you there's a separate crew quarters on an airplane the fact of being on an airplane means that that a call is never going to when the skates yes they at least one of the facts that have been developed on would be free to impose duties on your folks the entire return flight there would be free to do that regardless and they don't now so questions maybe you're worried about the next case but for this case don't you just have to say look a call didn't say ten minutes after take off everybody takes an hour for meal and there is no distinguishing between so called d meal time and so cold watch movie time i don't i don't think i understand why you're pressing so or against these ibos except  forestall the next case no that's not why your honor i'm simply attempting to answer the questions that are that are being asked but i agree with you that a cow doesn't tell them when their meal break is they simply they simply automatically deduct an hour when there are no t v detainees aboard and so i agree that all the hypotheticals are not this case and as the district court found this case relatively unique so there wasn't a separate crew quarters and a call said this is the time we now start the clock on one hour me a break to watch what the but the purpose of the time is up to regular mail you're right that it's still would be that they're on it still would be that they're on the t mean if you're saying anytime you're on a plane you can't deduct from your home d i understand that argument but i feel like that's not what you're saying but i can't figure out any way to except to  you know allow anybody to ever charge a meal or on an airplane under the argument you're making that's not the case the i know i know but we have to write an opinion that applies to every so well it wasn't just my two it actually wouldn't apply to every case because a commercial flights were all commercial flights are governed by the railroad labor act not the fall and i mean not i mean a case brought under these regulations i just i mean for my part i don't see how it's the employer says you know you have you let me ask one question out of the gate is it fatal to your case that a college does not designate a specific hour on the return flight as the meal hour not at all in fact that's exactly where i was going to start your honor thank you so what i would ask the court to do is in a cult initial grief at page thirty three we discussed that distinction one on the language of regularly scheduled meals which is language that we used in cold climates and dicta it is actually not reflective of what's in the department of labor's regulation which uses the phrase regular meal and then there are a citation to case law which talks about what it means to have regular meal and how it's been interpreted in a case law i would reference three cases that are cited there one is a th circuit case cases talks about the availability of a meal period being but one dollar to five dollars and properly not compensated even though that meal period is as  the th circuit put five catch as catch can or as the federal claims court referenced it can be a regular when officers are responsible for transporting migrants so it i s not necessary that a meal period be scheduled and particularly in auto automatic deduction cases it is common for an employer to allow employees to select the timeframe that the employee would like to go to lunch in fact it's very common for example in health care cases for health care of providers to allow nursing staff for example to use their automatic once deduction time when it's appropriate for them to use that say for example when they're finished servicing a patient and that's an appropriate time for them to take their break to go to lunch and so they'll have maybe a forty five minute lunch at that lunch will be automatically dot deducted for their shift period that they have that break in time they finish servicing that patient they can do it at that time at the that would prevent a call from designating the entire return flight as meal time undeniable yes i think there is absolutely and that is the standard that a meal period has to be bona might be shorter but what's the magic of one hour i can't tell you that i can cite cases because we the issue hasn't been vetted in the briefing and the question hasn't come up previously that the meal period be longer than an hour i can simply tell you i have not seen a meal period longer than an hour i haven't seen case law betting meal periods longer than an hour and i do believe that if longer than an hour were presented to a court it would be deemed to be an unreasonably long period the  department of labor regularly just because some court would say in our experience what we take judicial notice of the people eat lunch for an hour and that seems hard for me to imagine that just given the worst the words of bonafide that somebody would say oh anything over an hour his personal reason i'm sure about i don't know that that's the case either your honor other than to tell you that we typically do talk about the lunch hour and people are typically given no longer than an hour for lunch the department of labor regulation does say thirty minutes can be deemed sufficient and is generally deemed to be enough shorter than that is compensable all i can say is that the facts of this case are it was not longer than an hour and that they were paid the whole time i think that what's happened in this case is that because of how did not require the a s o is to work during the flight at all what's happened is the entire analysis has been conflated so the mt return lag having been compensated from start to finish accepting not one hour the analysis ended up getting conflated and the one hour meal period didn't get pulled out because they're not doing anything the entire time i think that had a cow required that they work during that timeframe the analysis might have been maybe a little bit easier to have seen that and to put in there that that meal period man i just ask you if you know a lot more about this area of the law than i do but as you say in your present counsel but  require the agreement some employers don't i've seen it very across cases and across employers in the industries that i've worked on and that's entering high school you know it does thank you might i address one quick issue with regard to the space issue moving the seats or not sitting at your desk sitting in the factory when i like your time but will give you thirty seconds to thirty seconds thank you very much your honor one thing i would like to just point out is that the issue about  being in the space and whether or not there is a berth to sleep in or whether or not you move to crew quarters or you have a different seat the issue that is addressed about incent seventy five point  b as in boy that an employer can require employees to stay on premises the issue is not that be have you have a different physical space to be an it's whether or not the employer is going to be able to put you at risk of working or or or threaten you with a work in this instance there be no detainees at on the plane there was not the risk that these a s o's were going to be threatened to work and hence it doesn't matter whether they could move a seat or go to a crew quarter or