IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60637

DONALD R. NAYLOR; ANTHONY JENKINS; JAMES E. BROWN; 

SANDRA A. SKIPPER; MICHAEL DARDEN; LAWRENCE F. HATTEN; 

BRANDON BOYD; DEMETRICK D. JOHNSON; CLINTON G. TEW; 

BETTYE C. JACKSON; WILLIAM M. HARVEY; SANCHEZ J. CLAYTON; 

MICHAEL GRIFFIN; JOHN T. STEWART; MEARLON COLEMAN; LAURA 

CHIASSON; JERRY M. SIMMONS; MARCUS HOPSON; TYRONE A. 

JOHNSON; RODNEY M. STRICKLAND; DURLAND YOUNG; ALL 

PLAINTIFFS; RALPH L. SIMPSON, 

 Plaintiffs - Appellants

v.

SECURIGUARD, INCORPORATED; PATRICIA MARVIL; JOHN 

OXENDINE; OSCAR J. HOLT, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Southern District of Mississippi

Before REAVLEY, PRADO, and COSTA, Circuit Judges.

GREGG COSTA, Circuit Judge:

Meal breaks have been a cherished feature of the American workday 

since the Industrial Revolution transformed the life of workers more than a 

century ago. See generally Lunch Hour NYC, New York Public Library (June 

22, 2012), http://www.nypl.org/audiovideo/lunch-hour-nyc (detailing the 

evolution of fixed meal hours since their introduction in the mid-1800s). 

United States Court of Appeals

Fifth Circuit

FILED

September 15, 2015

Lyle W. Cayce

Clerk

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Department of Labor regulations generally exempt meal breaks from pay

requirements but specify that such breaks ordinarily last at least thirty

minutes. The employer in this case scheduled thirty-minute breaks for meals 

but imposed traveling obligations that ate into the employees’ time for meals. 

We must decide if a jury could find that, because of these obligations, the 

breaks are more like mere rest periods and thus compensable under the Fair 

Labor Standards Act.

I

Access to Naval Air Station Meridian is controlled by several gates 

located across the base. The United States Navy contracted with Defendant 

Securiguard, Inc. to provide guards for each gate, and Securiguard hired the 

plaintiffs to fill those positions. During the years at issue in this lawsuit, the 

guards usually worked eight-hour shifts with two scheduled thirty-minute 

meal breaks. Each meal break began when a Securiguard “relief officer” 

arrived at the gate in a company car. The guard then had thirty minutes to 

spend away from the guard post. During the break, the guards were required 

to remain armed and in uniform, which included a bulletproof vest. 

Although the guards expressed a desire to eat at the gate or while

sitting in the parked company car during the break, Securiguard—apparently 

fearful that the Navy would see the guards eating and believe they were 

shirking their security duties—prohibited them from doing so.1 Securiguard 

instead required the guards to travel to a designated break area on the base. 

The time required to reach the closest area varied depending on where the 

guard was stationed and which shift the guard was working. At the low end, 

guards posted at the “truck gate” could walk to a storage unit just a few yards 

 

1 Securiguard submitted an affidavit from the plaintiffs’ manager that the guards 

could sit in the parked car during the break. Plaintiff Donald Naylor’s affidavit contradicts 

that assertion, and the summary judgment posture of this case dictates that we resolve the

dispute in favor of the plaintiffs.

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away; guards posted at the “main gate” could drive less than a minute to the 

base security building; and guards posted at the “flightline gate” between 

6:00 a.m. and midnight could go across the street to a fire station. At the 

high end, guards posted at the “housing gate” or working the graveyard shift

at the flightline gate had an eleven or twelve minute roundtrip drive between

the nearest location where they could eat. 2 The guards were required to use

the company car to reach the locations not within walking distance, and

while in the vehicle they were prohibited from eating, drinking, smoking, or 

talking on their cell phones. 

Treating each thirty-minute break as a “bona fide meal period” for 

which the Fair Labor Standards Act (FLSA) does not require compensation, 

29 C.F.R. § 785.19, Securiguard did not compensate the guards for this time.

In 2010, the Department of Labor investigated Securiguard and 

partially disagreed with that determination. It assessed a civil penalty based 

on its conclusion that one meal break was compensable because it took place 

outside a regular meal time. Securiguard maintained that its pay practice 

was correct but changed its policy from that point forward to allow the guards 

to take a single sixty-minute break rather than two thirty-minute breaks. 

The agency investigation did not result in an award of back wages, and 

more than thirty guards brought this case under the FLSA seeking such

 

2 Guards on certain shifts could also drive to restaurants located on the base, 

although they were farther than the closest option for each gate. The drive time to base 

restaurants, because it was longer than the drive time to the nearest possible location 

where the guards were permitted to eat, does not factor into our analysis. Most employees 

have the option of choosing to walk or drive to a restaurant for lunch. Or an employee 

might choose not to eat at all and just go for a thirty-minute walk. That exercise of the 

employee’s freedom during a meal break is, of course, different than an employer 

requirement that an employee travel to a separate location before she is allowed to eat. In 

this opinion, we are concerned only with that latter situation.

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damages.3 As this case seeks only retrospective relief, it focuses solely on the 

thirty-minute meal periods that Securiguard no longer provides. Neither side 

advances the position taken by the Department of Labor or otherwise 

distinguishes between the two meal breaks; the guards argue that both meal 

breaks qualifed as compensable time, whereas Securiguard contends that 

neither did.

The district court granted Securiguard’s motion for summary judgment. 

It held that the FLSA requires compensation for a meal break only when an 

employer imposes “substantial duties or restrictions” during the designated 

time. Reasoning that “requiring employees to use company vehicles on lunch

breaks can hardly be construed as a work duty” and that the company inured 

no benefit from the meal break, the district court found Securiguard’s 

restrictions too insubstantial to make the break compensable.4 Naylor v. 

Securiguard, Inc., 2014 WL 1882442, at *3 (S.D. Miss. May 12, 2014). 

 

3 In addition to suing Securiguard, the guards also brought claims against John 

Oxendine, their Securiguard manager, and Patricia Marvil, Securiguard’s president. 

Because neither Oxendine nor Marvil make any arguments for why they should be treated 

differently than Securiguard, we refer to the defendants collectively as “Securiguard.” The 

claims against Oscar Holt, who is a named defendant but was never served, are not before 

us on appeal. 

4 The district court also assumed that the guards could schedule the thirty-minute 

breaks back-to-back for a full hour of break time. The parties agree this was an erroneous 

reading of the record. We find, however, that the incorrect assumption about the length of 

the breaks does not itself merit reversal because the district court also based its reasoning 

on the nature of the restrictions. See Gilbert v. Donahoe, 751 F.3d 303, 311 (5th Cir. 2014) 

(holding that we may “affirm on any ground supported by the record . . . so long as the 

argument was raised below”).

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II

Department of Labor regulations, which neither side contends are 

unreasonable interpretations of the FLSA in this area, divide workplace

breaks into two worlds. First are “rest breaks” (often called “coffee breaks”)

for which an employee must be paid:

[Rest.] Rest periods of short duration, running from 5 minutes to 

about 20 minutes, are common in industry. They promote the 

efficiency of the employee and are customarily paid for as 

working time. They must be counted as hours worked.

29 C.F.R. § 785.18. Second are “meal periods” for which an employee need 

not be paid:

Bona fide meal periods. Bona fide meal periods are not worktime. 

Bona fide meal periods do not include coffee breaks or time for 

snacks. These are rest periods. . . . Ordinarily 30 minutes or more 

is long enough for a bona fide meal period. A shorter period may 

be long enough under special conditions. 

Id. § 785.19. The regulations thus make the duration of the break the key 

factor in whether it is classified as the shorter, compensable “rest break” or 

the longer, noncompensable “meal period.” The reason for the temporal 

distinction is that a shorter break is deemed to predominately benefit the

employer by giving the company a reenergized employee. See id. § 785.18.

In setting the time away from the guard station at thirty minutes,

Securiguard attempted to meet the threshold time at which a break is 

ordinarily treated as a noncompensable meal period. But the guards argue 

that the employer-mandated travel time before they were allowed to eat

shortens the break to a time period that no longer qualifies as 

noncompensable.

A meal break often does not allow for eating during the entire break; 

some time may be needed to move to another area of the workplace or to 

leave the workplace. Although office workers are usually free to eat at their 

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desks and thus take full advantage of a thirty-minute break (to the extent 

one can be on “break” at her desk), employees on the factory floor usually 

must move to a “break room” before eating due to safety concerns. Or, closer 

to the situation in this case, retail employees may have to move off the sales 

floor so customers do not see them munching on a sandwich or slurping soup 

near the merchandise. To the extent this transition time amounts to no more 

than a couple of minutes, it is incidental and does not undermine the 

noncompensable nature of the break. See Henson v. Pulaski Cty. Sheriff 

Dep’t, 6 F.3d 531, 534 (8th Cir. 1993) (recognizing that the standard for a 

sufficient meal break is flexible and must accommodate for “the nature of the 

business involved”). This is the case for the two-minute round trip to a break 

area when employees were working at the main gate (a one-minute drive to 

the security building), truck gate (a one-minute walk to the storage unit), or 

flightline gate between 6:00 a.m. and midnight (a one-minute walk to the fire 

station). We will thus affirm the grant of summary judgment for these 

breaks.

At some point, however, employer-mandated transition time becomes 

substantial enough that it may make the break more like the shorter “rest” 

period. Consider a situation in which an employee is relieved from a duty 

station for thirty minutes but spends twenty-five of those minutes in 

company transportation traveling to and from a break room. Would anyone 

reasonably contend that the remaining five minutes during which the 

employee is allowed to eat—hardly enough time to even scarf down a 

sandwich and take a few gulps of a drink—renders the entire thirty minutes 

a “bona fide meal break”? Although not as extreme a situation, the ten and 

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twelve minute round-trip drive times at the housing and flightline5 gates cut 

into the employee’s eating time enough to raise doubts about whether the 

entire period qualifies as noncompensable.

We have never addressed this question about the legal effect of 

employer-mandated travel time that significantly eats into an otherwise 

noncompensable thirty-minute meal period. The closest case addressed the 

compensability of twenty-minute meal breaks given to police officers after

they arrived at a location where they could eat. See Lee v. Coahoma Cty., 

937 F.2d 220, 225 (5th Cir. 1991). Lee, which relied in part on FLSA 

regulations specific to law enforcement officers, affirmed a ruling reached

after trial that the breaks qualified as bona fide meal periods. Id. (refusing to 

find clear error in the trial court’s finding that the shortness of the breaks 

made them compensable). It does not, however, dictate a ruling here that 

judgment as a matter of law was appropriate on an issue that we have often 

pointed out may be heavily factbound and thus, as in Lee, “is ordinarily 

resolved by the trier of fact after hearing all of the evidence.” Bernard v. IBP, 

Inc. of Neb., 154 F.3d 259, 265 (5th Cir. 1998). Most notable among the 

factual distinctions, in Lee the “deputies did not log off until they had arrived

at their chosen eating place[,] and were therefor compensated for traveling to 

their destination,” which is what led us to conclude that the “usual thirty 

minute threshold [was] inapplicable.” Lee, 936 F.2d at 225.

In analyzing this different situation in which Securiguard treated the 

entire period of the break—both the travel time and time during which the 

guards could eat—as noncompensable, we consider our meal period cases 

since Lee. They have established a framework to analyze the compensability 

 

5 All references to the flightline gate from this point forward refer to the shift 

between midnight and 6:00 a.m., when the fire station was not available as a break

location.

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of meal breaks but have also arisen in significantly different factual contexts. 

The typical meal break case involves a situation in which the employee is

generally allowed to eat during the entire break period but continued to be 

“on call” or otherwise incur work responsibilities during the period. For 

example, our leading case on meal breaks arose from the employer requiring 

its maintenance workers to handle any repair issues that arose during their

breaks. Bernard, 154 F.3d at 262–63. Another case stemmed from

restrictions on firefighters’ dress and use of city-owned automobiles during 

the meal break. Alvarez v. City of El Paso, 2002 WL 334630, *1 (5th Cir. 

2002). In these cases, we held that “[t]he critical question is whether the 

meal period is used predominantly or primarily for the benefit of the 

employer or for the benefit of the employee.” Bernard, 154 F.3d at 264–65 

(referring to this inquiry as “the predominant benefit test”). This test 

considers “whether the employees are subject to real limitations on their 

personal freedom which inure to the benefit of the employer; whether 

restrictions are placed on the employee’s activities during those times . . .; 

whether the employee remains responsible for substantial work-related 

duties; and how frequently the time is actually interrupted by work-related 

duties.” Id. at 265.

The district court applied the predominant benefit test in concluding 

that the guards predominately benefited from the meal break despite being 

required to spend a significant amount of time driving away from their duty 

station. Naylor, 2014 WL 1882442, at *3 (reasoning that “requiring 

employees to use company vehicles on lunch breaks can hardly be construed 

as a work duty” and the company inured no benefit from the meal break). In 

doing so, the district court attempted to fit this case within the line of 

“predominant benefit” cases finding that restrictions such as those requiring

that an employee stay in uniform during a meal break are nothing more than 

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“inconveniences, ” Alvarez, 2002 WL 334630, at *1, as “the employee can use 

the time effectively for his or her own purposes,” Bernard, 154 F.3d at 265–66

(defining this as the “critical issue”)); cf. Ruffin v. MotorCity Casino, 775 F.3d 

807, 812–15 (6th Cir. 2015) (holding that the employees failed to prove the 

meal break compensable despite restrictions that they stay in uniform, wear 

their equipment, remain on the premises, and infrequently respond to 

emergencies). This conclusion ignores that, at least if the evidence favoring 

the guards about their lack of freedom during the travel time is credited, they 

could not use more than a third of the meal periods still at issue for their own 

purposes.

How much of that employer-mandated travel time, during which the 

employee cannot do as she pleases, is enough to render a break a rest period 

instead of a meal period? Both parties contend that the predominant benefit

test provides the answer, although it does not seem like a perfect fit for this 

situation. After all, the answer to the predominant benefit test may well be 

different for discrete portions of the thirty minutes—the driving time seems

to benefit Securiguard with little employee freedom whereas the remaining 

time provided at least some benefit to the guards. Viewing the break as a 

single unit like Securiguard treated it,6 the core concern is the same as it was 

in Bernard and the other cases dealing with meal breaks: how much time is 

available to the employees? In Bernard, the constraints on the employees’

time resulted from frequent interruptions that lasted for various durations of 

time. 154 F.3d at 262-63 (stating the plaintiffs’ meal breaks were 

“interrupted frequently by supervisors who often asked them to repair 

 

6 Neither side advances the position that the break might be only partially 

compensable, as was true in Lee where the travel time was paid. See also Alvarez v. AMBTrans, Inc., 2012 WL 5453518, at *2, *5 (W.D. Tex. Nov. 7 2012) (finding forty minutes of a 

sixty-minute break compensable because the plaintiffs could not use that time “effectively 

for their own purposes”). The district court may consider that possibility on remand.

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equipment” or “to discuss the afternoon work schedule”). The same is true 

here, except that the “interruptions” happened more frequently—every meal 

break—and lasted a fixed period of time. A requirement that deprives the 

employee of the opportunity to eat during 40% of a thirty-minute break thus

strikes at the heart of what we and other courts have recognized as the most 

important consideration: an employee’s ability to use the time “for his or her

own purposes.” Id. at 265; see Avery v. City of Talladega, 24 F.3d 1337, 1347 

(11th Cir. 1994) (focusing on whether the employees “are free to spend their 

meal breaks in any way they wish”). Unlike a requirement that the employee 

stay in uniform, or even one that may result in the employee having to 

perform a duty on rare occasions, a jury could find that preventing the 

employee from eating—ostensibly the main purpose of the break—for twelve

out of thirty minutes during every break is a meaningful limitation on the 

employee’s freedom. See Lee, 937 F.2d at 225 (holding that whether a 

twenty-minute break was sufficiently long was a question of fact); see also 

Mireles v. Frio Foods, Inc., 899 F.2d 1407, 1411 (5th Cir. 1990) (applying the 

predominant benefit test to waiting time and affirming the factual finding 

that “[w]aiting times ranging from fifteen minutes to forty-five minutes . . . 

were of such a short duration that Plaintiffs could not effectively use them for 

their own purposes”). The travel obligation thus cannot be deemed a mere 

“inconvenience” as a matter of law.

And if a jury concludes that the twelve minutes predominately 

benefited Securiguard, the additional problem for Securiguard is that the

remaining portion of the meal period during which the employee could eat 

was only eighteen minutes, which falls under time thresholds at which a 

break is usually deemed a bona fide meal period. At only eighteen minutes, 

the break could be viewed as one that, like a morning coffee break, is 

primarily intended to “promote the efficiency of the [guards]” and thus 

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benefit the employer with rejuvenated and nourished employees, see 29 

C.F.R. § 785.18, as opposed to a lengthier period of employee freedom during 

which the benefit to the employee predominates, see id. § 785.19.

This conclusion is supported by our cases holding that “predominant

benefit” is typically a fact question on which the employer bears the burden.7 

Bernard, 154 F.3d at 265 (“Whether meal time is predominantly for the 

benefit of the employer is a question of fact that is ordinarily resolved by the 

trier of fact after hearing all of the evidence.”); see also Hartsell v. Dr. Pepper 

Bottling Co. of Tex., 207 F.3d 269, 274 (5th Cir. 2000) (“The ‘predominant 

benefits test’ is applied to determine who primarily benefits from the period. 

This is a question of fact. . . .”); Lee, 937 F.2d at 225 (deferring to the “district 

court’s fact conclusion that the meal periods are not compensable”). Indeed, 

the impact of the travel restriction is not the only disputed fact that a jury

could find material to the predominant benefit inquiry. We noted above a

dispute about the extent to which the guards’ freedom was limited while in 

the company car. See Reich v. S. New Eng. Telecomms. Corp., 121 F.3d 58, 

68-69 (2d Cir. 1997) (finding the meal break compensable partly “[b]ecause 

[the employer] required all workers to remain on-site” during the meal 

breaks).

We therefore AFFIRM summary judgment on the guards’ claims based 

on the main gate, the truck gate, and the 6:00 a.m. through midnight shifts 

at the flightline gate when the mandatory commute time was de minimis. 

 

7 In some circuits, the employee has the burden to prove the time is compensable. 

See, e.g., Hertz v. Woodbury Cty., 566 F.3d 775, 783–84 (8th Cir. 2009) (“Plaintiffs cite 

Fourth and Fifth Circuit case law as support for the proposition that the [employer] bears 

the burden because mealtimes qualify as an ‘exemption’ within the meaning of the FLSA. 

We are not persuaded . . . [m]ealtimes, then, are not exempt from compensation, but rather 

they are not compensable in the first instance.”); Myracle v. Gen. Elec. Co., 1994 WL 

456769, *4 (6th Cir. 1994) (“[I]t is the employee who bears the burden of proving that he or 

she performs substantial duties and spends his or her meal time predominately for the 

employer’s benefit.”).

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But because a jury could find that the remaining meal breaks did not allow 

enough time for the employees to use the break for their own purposes to 

qualify as noncompensable, we REVERSE the district court’s grant of 

summary judgment and REMAND for further proceedings.

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