Tymeco Jones, et al v. SCO Silver Care Operations LLC

Filing

PRECEDENTIAL OPINION Coram: AMBRO, CHAGARES and FUENTES, Circuit Judges. Total Pages: 21. Judge: FUENTES Authoring, Judge: AMBRO Dissenting.

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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-1101
_____________
TYMECO JONES, IESHA BULLOCK, and TEAIRRA
PIZARRO, on behalf of themselves and those similarly
situated
v.
JOHN DOES 1-10;
SCO SILVER CARE OPERATIONS LLC d/b/a ALARIS
HEALTH AT CHERRY HILL
Appellant
_____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-13-cv-07910)
District Judge: Honorable Noel L. Hillman
_____________
Argued: November 16, 2016
Before: AMBRO, CHAGARES, and FUENTES, Circuit
Judges
(Opinion filed: May 18, 2017)
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Stuart A. Weinberger, Esq. [Argued]
Goldberg & Weinberger
630 Third Avenue
18th Floor
New York, NY 10017
Counsel for Appellant
Matthew D. Miller, Esq. [Argued]
Justin L. Swidler, Esq.
Swartz Swidler
1101 Kings Highway North
Suite 402
Cherry Hill, NJ 08034
Counsel for Appellee
_____________
OPINION OF THE COURT
_____________
FUENTES, Circuit Judge.
Plaintiffs, Tymeco Jones, Iesha Bullock, and Teairra
Pizzarro, are certified nursing assistants who bring this action
against their employer, SCO Silver Care Operations (“Silver
Care”) for violations of the Fair Labor Standards Act
(“FLSA”) and related New Jersey state wage and hour laws.
The plaintiffs claim that Silver Care underpaid them for
overtime in two ways. First, Silver Care failed to include
certain hourly wage differentials in the calculation of the

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plaintiffs’ regular rate of pay, resulting in illegally low
overtime rates. Second, Silver Care deducted plaintiffs’ halfhour meal breaks from their total hours worked, even though
they often worked through those breaks. A year after the
plaintiffs filed their lawsuit, but before any discovery took
place, Silver Care moved to dismiss or to stay the proceedings
pending arbitration, citing the arbitration clause in the
governing collective bargaining agreement (“CBA”). The
District Court denied the motion to dismiss or to stay pending
arbitration. Defendant Silver Care appeals, contending that
both overtime claims must first be submitted to arbitration to
resolve disputed interpretation of the CBA, including the
definition of the wage differentials and policies concerning
the meal breaks. For the reasons set out below, we will
affirm the decision of the District Court.
I.

Background

The plaintiffs are employed at an assisted living
facility, which was bought by Silver Care in 2007. The terms
of their employment are governed by a CBA, negotiated by
the nurses’ union at the time of the purchase in 2007. This
agreement lays out, among other things, wages, raises, breaks,
and a grievance procedure that directs all disputes and
complaints arising under the CBA to arbitration. Together,
the three plaintiffs bring underpayment of overtime claims on
their own behalf and on behalf of a class of nursing assistants
who have worked at the nursing home at any time between
December 31, 2010 and December 31, 2013.
Their
allegations are twofold: First, though plaintiffs are paid wage
differentials, an additional $1.25 an hour to $3.00 an hour to
account for shift premiums and raises, these differentials are
not included in their regular rate of pay when overtime pay is

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calculated. Second, plaintiffs’ 30-minute meal breaks are
automatically deducted from total time worked even though
they often need to work through those breaks during night
shifts. Briefly summarized below are the facts relevant to
each of these two claims, followed by the procedural history.
A.

Exclusion of Wage Differentials in Overtime
Calculation

Nursing assistants are paid a base rate of $10 to $14 an
hour. In addition to these base rates, they may also be paid
some or all three types of differentials: (1) “shift
differentials”—an additional $2.50 an hour or $3.00 an hour,
depending on the time and day of the shift; (2) “raise
differentials”—an additional $1.25 an hour to those who
received a certain type of raise; and (3) “frills differentials”—
an additional $1.00 an hour or $1.60 an hour for nursing
assistants who elected to forgo certain benefits. Whereas
nursing assistants are compensated for overtime at one and a
half times their base rate plus frills differential, plaintiffs here
allege, and have submitted paystubs to demonstrate, that the
shift differentials and raise differentials are not included.
Consequently, the plaintiffs contend that they are
undercompensated for overtime, which should be at one and a
half times their all-in hourly rate during the regular work
period.
B.

Uncompensated 30-Minute Meal Breaks

Under the CBA, nursing assistants who are scheduled
for eight-hour shifts are entitled to two paid 15-minute breaks
and one unpaid 30-minute meal break per shift. The plaintiffs
allege that nursing assistants who work during the night shifts

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“rarely, if ever” took an uninterrupted meal break because
those shifts are chronically understaffed.1 For example,
whereas each nursing assistant is typically responsible for
twelve to seventeen patients during the day and evening
shifts, a nursing assistant on a night shift would be
responsible for around thirty patients. In fact, the plaintiffs
allege that, due to the staff shortage, the night shift
supervisors do not schedule meal breaks for the night shift
nursing assistants, and that when they do eat, they do so at the
nurse’s station, rather than in the break room, in order to hear
the call bell alerting them to patients requiring care. Despite
the frequent interruptions and restrictions, the plaintiffs allege
that the 30-minute meal breaks are automatically deducted
from their total hours worked. Consequently, the plaintiffs
allege that they are not being paid for all the hours worked,
including overtime for those weeks in which they worked
more than forty hours.
C.

Procedural History

The plaintiffs filed suit in December 2013. Silver Care
moved to dismiss the complaint, which motion was denied
when the plaintiffs filed an amended complaint. Silver Care
subsequently moved to dismiss the amended complaint,
which was granted as to the plaintiffs’ claims seeking
injunctive relief, but denied as to the claims seeking monetary
damages. Thereafter, the plaintiffs moved to conditionally
certify their suit as a collective action. Silver Care opposed
the motion for conditional certification and moved to dismiss
or to stay the proceedings pending arbitration. The District
Court granted conditional certification and denied Silver
1

A 116.

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Care’s motion to dismiss or stay proceedings pending
arbitration, holding that the plaintiffs’ FLSA claims do not
arise out of or implicate the CBA. Silver Care subsequently
moved for reconsideration, which was also denied. Silver
Care appealed.2
II.

Discussion

The main issue on appeal is the applicability of the
arbitration clause in the CBA to each of the plaintiffs’ FLSA
overtime claims. We begin by examining the relevant legal
framework before turning to the plaintiffs’ two claims.
A.

Legal Framework

Whether and when a plaintiff’s FLSA claims can be
covered by an arbitration clause in a CBA is subject to a twoprong test. A court may compel arbitration of a plaintiff’s
2

The District Court had jurisdiction under 28 U.S.C. § 1331
to adjudicate the FLSA claims and under 28 U.S.C. § 1367 to
consider the associated state law claims. The District Court’s
order denying Silver Care’s motion to dismiss or to stay
pending arbitration under 9 U.S.C. § 3 is immediately
appealable under 9 U.S.C. § 16(a)(1). Arthur Anderson LLP
v. Carlisle, 556 U.S. 624, 628 (2009). Our review of the
arbitrability of the plaintiffs’ claims is plenary. See Edwards
v. HOVENSA, LLC, 497 F.3d 355, 362-63 (3d Cir. 2007)
(citing Harris v. Green Tree Fin. Corp., 183 F.3d 173, 176
(3d Cir. 1999)). We review the District Court’s denial of the
motion for reconsideration for abuse of discretion.
Chesapeake Appalachia, LLC v. Scout Petroleum, LLC, 809
F.3d 746, 753 (3d Cir. 2016).

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federal statutory claim when (1) the arbitration provision
clearly and unmistakably waives the employee’s ability to
vindicate his or her federal statutory right in court; and (2) the
federal statute does not exclude arbitration as an appropriate
forum.3 Even if no clear or unmistakable waiver exists,
however, we have held that arbitration may still be compelled
if the plaintiff’s FLSA claim “depends on the disputed
interpretation of a CBA provision,” which dispute must “first
go to arbitration—through the representative union—before
[the employee may] vindicat[e] his or her rights in federal
court under the FLSA.”4 We established this narrow rule to
prevent a plaintiff from circumventing applicable statutes of
limitations and contractually binding grievance procedures set
out in a CBA. Tellingly, we have applied it to dismiss a
plaintiff’s FLSA claim in only one case, Vadino v. A. Valey
Engineers.5
In Vadino, the plaintiff-employee brought two claims.6
First, the plaintiff alleged that the employer breached the
CBA by paying him less than the wages due to a journeyman
under the CBA.7 Second, he alleged that the employer
breached the overtime provision of the FLSA because he was
not paid for overtime hours at one and a half times the
journeyman rate to which he claimed that he was entitled
under the CBA.8 In short, both claims centered on his
3

14 Penn Plaza v. Pyett, 556 U.S. 247, 260 (2009).
Bell v. Se. Pa. Transp. Auth., 733 F.3d 490, 494 (3d Cir.
2013).
5
903 F.2d 253 (3d Cir. 1990).
6
Id. at 255.
7
Id. at 257.
8
Id.
4

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argument that the CBA promised him higher wages than what
he actually received. Consequently, because his FLSA claim
was “inevitably intertwined with the interpretation or
application of [the] collective bargaining agreement,”9 we
held that he must first resolve his contractual dispute
according to the internal grievance procedure set out in the
CBA.10 He could vindicate his federal statutory right in court
only after resolution of his CBA claim.11
By contrast, we held more recently in Bell v.
Southeastern Pennsylvania Transportation Authority that the
plaintiffs were not required to resolve any contractual
disputes through arbitration before bringing their FLSA claim
in federal court because their FLSA claim was completely
independent of any interpretation of the CBA.12 In that case,
the plaintiffs, who worked as bus drivers and trolley
operators, claimed that they should have been compensated
for time spent performing vehicle inspections before the start
of their daily trips.13 The defendant argued that this FLSA
claim depended on “whether the provisions of the CBA
governing compensation for reporting time prior to the start
of daily schedules include payment for pre-trip inspections.”14
That argument failed, however, because the employees did
not claim that “they are entitled to additional payment under a
CBA.”15 Rather, “resolution of the FLSA claim requires a
9

Bell, 733 F.3d at 494 (describing Vadino).
Vadino, 903 F.2d at 266.
11
Id.
12
Bell, 733 F.3d at 491.
13
Id.
14
Id. at 495 (internal quotation marks omitted).
15
Id.
10

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factual determination of the amount of time Operators are
required to work prior to their scheduled start, and a legal
determination regarding whether this time is (1) compensable
and (2) subject to the overtime provisions of the FLSA.”16
In summary, to the extent that an employee may be
compelled to arbitrate his or her FLSA claims at all, the
arbitration clause in the CBA must clearly and unmistakably
state so. However, even where an arbitration clause does not
contain a clear and unmistakable waiver of a plaintiff’s right
to a judicial forum, a plaintiff may nonetheless be compelled
to arbitrate disputes over interpretations of the CBA, if the
FLSA claims depend on such contractual disputes.
Here, Silver Care does not dispute that the arbitration
provision lacks a clear and unmistakable waiver of the
employees’ right to vindicate their FLSA claims in federal
court.17 Instead, Silver Care argues that this case must be
stayed pending arbitration because both of the plaintiffs’
FLSA claims depend on disputed interpretations of the CBA.
For the following reasons, we disagree.
16

Id.
In fact, the arbitration clause defines a grievance “as a
dispute or complaint arising between the Union and the
Employer under this CBA or the interpretation, application,
performance or any alleged breach thereof.” A 189. It does
explicitly provide that “[a]ll claims that an employee has been
discriminated against . . . in violation of applicable federal,
state or local law shall be subject to the grievance and
arbitration procedure as the sole and exclusive remedy for
violations.” A 191. But there is no similar provision for
FLSA disputes.
17

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B.

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Miscalculation of Overtime Rate Claim

Silver Care argues that the plaintiffs’ FLSA claim
alleging miscalculation of the overtime rate rests upon a
dispute over an implicit term of the CBA regarding whether
the differentials already include a payment for overtime.
Silver Care claims that during the collective bargaining
process, when it negotiated to grandfather in some of the
differentials, it also came to an agreement with the nurses’
union that the additional differential amounts would already
include overtime.18 For example, Silver Care asserts that
what appears to be a “$3.00 per hour weekend differential is a
gross amount comprised of the $2.00 per hour differential and
an extra $1.00 per hour in overtime premium . . . regardless of
whether [the weekend shift] was worked in excess of 40
hours per week.”19 This, Silver Care posits, constitutes a
dispute over an implicit term of the CBA that must first be
sent to arbitration before a court can decide whether the
plaintiffs have a claim under the FLSA.20
Silver Care’s argument fails because the plaintiffs’
overtime claim is governed by the FLSA. Unlike the dissent,
we believe that the statute requires us to bypass how the CBA
breaks down the pay differentials, and look only to whether
these pay differentials fit into the statutory definition of
remuneration that must be included in the calculation of an
employee’s regular hourly rate of pay.

18

Appellant’s Br. at 44.
Id. at 41.
20
Id. at 41-42.
19

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The FLSA requires qualifying employers to pay “at a
rate not less than one and one-half times the regular rate” to
employees for hours worked in excess of forty hours a
week.21
The regular rate of pay is defined as “all
remuneration for employment paid to, or on behalf of, the
employee,” and the statute explicitly sets out a limited list of
eight exceptions to this rule of “all remuneration.”22 We have
held that these statutory exclusions are exclusive. “[A]ll
remuneration for employment paid which does not fall within
one of these seven exclusionary clauses must be added into
the total compensation received by the employee before his
regular hourly rate of pay is [to be] determined.”23
Furthermore, these statutory exclusions “are narrowly
construed, and the employer bears the burden of establishing
[that] an exemption [applies].”24
In other words, whether the wage differentials should
be included in the regular rate of pay depends not on any
labels assigned to them by the CBA, but on whether they fit
into one of the statutory exclusions. An employee’s “regular
rate is a readily definable mathematical calculation that is
explicitly controlled by the FLSA.”25 As the Supreme Court
puts it, the regular rate “is not an arbitrary label chosen by the
21

29 U.S.C. § 207(a)(1).
29 U.S.C. § 207(e).
23
Smiley v. E.I. Dupont De Nemours & Co., 839 F.3d 325,
330 (3d Cir. 2016) (quoting 29 C.F.R. § 778.200(c)).
24
Id. (quoting Minizza v. Stone Container Corp. Corrugated
Container Div. E. Plant, 842 F.2d 1456, 1459 (3d Cir.
1988) (internal citations omitted)).
25
Id. (citing Walling v. Youngerman-Reynolds Hardwood
Co., 325 U.S. 419, 424-45 (1945)).
22

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parties; it is an actual fact.”26 Once amount of wages actually
paid is known, “the determination of the regular rate becomes
a matter of mathematical computation, the result of which is
unaffected by any designation of a contrary ‘regular rate’ in
the wage contracts.”27
Therefore, whether the CBA
designates $2.00 of the $3.00 shift premium for working on
Sunday as “regular pay” and $1.00 as “overtime” is
completely irrelevant to a court’s analysis of the proper
overtime payment owed to the plaintiffs. A court determines
the regular hourly rate of pay “by dividing [the employee’s]
total remuneration for employment (except statutory
exclusions) in any workweek by the total number of hours
actually worked by him in that workweek for which such
compensation was paid.”28 This calculation can be done
simply by looking at a paystub.
In conclusion, the plaintiffs’ miscalculation of
overtime rate claim does not depend on any disputed term of
the CBA, and, therefore, need not be sent to arbitration.
C.

Lack of Mealtime Compensation Claim

Silver Care argues that the plaintiffs’ second FLSA
claim—that their meal breaks should be credited towards
hours worked—depends on disputed practices under the
CBA, which must first be resolved by an arbitrator.29
26

Walling, 325 U.S. at 424 (emphasis added).
Id. at 425.
28
29 C.F.R. § 778.109.
29
Contrary to the dissent’s characterization, the plaintiffs
clearly state that their “claim for overtime wages due to
unlawful meal break deductions is based only on their
27

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Because we find that the alleged disputed practices
enumerated by Silver Care are simply factual disputes, we
hold that arbitration of the plaintiffs’ second claim is also not
necessary.
The FLSA itself does not define what are compensable
work hours. Instead, the Wage and the Hour Division of the
Department of Labor issued a number of regulations
providing employers and employees alike guidance on how it
would implement and enforce the law. One such regulation
provides that employers need not compensate employees for
bona fide meal periods because those are not considered to be
compensable worktime.30 The regulation defines a bona fide
meal period as rest periods during which “[t]he employee
must be completely relieved from duty for the purpose of
eating regular meals,” but “[t]he employee is not relieved if
he is required to perform any duties, whether active or
inactive, while eating.”31
As the dissent alludes, this regulation does not have
the force of law, however, and merely “constitute[s] a body of
experience and informed judgment to which courts and
statutory rights under the FLSA.” Appellees’ Br. at 17. They
emphasized that they ”do not claim that [Silver Care]
breached a contractual right provided by the CBA but instead
violated the FLSA and DOL regulations, which require
employers to pay employees 1.5 times their regular rates for
all hours worked in excess of 40 hours including meal breaks
that are not bona fide.” Id. (citing 29 U.S.C. § 207; 29 C.F.R.
§ 785.18) (emphasis in original).
30
29 C.F.R. § 785.19(a).
31
Id.

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litigants may properly resort for guidance.”32 And we were
so guided by it in Babcock v. Butler County, in which case we
recognized that the FLSA does require employees to be
compensated for meal periods if they are “primarily engaged
in work-related duties during” those times, adopting the socalled predominant benefit test.33 We explained that the
“predominant benefit test is necessarily a fact-intensive
inquiry,” where the “essential consideration . . . is whether the
employees are in fact relieved from work for the purpose of
eating a regularly scheduled meal.”34 Furthermore, one of the
factors we look to, as part of this predominant benefit test, is
the characterization of the mealtime break in the CBA.35 In
short, Silver Care is subject to a statutory obligation to
compensate the plaintiffs for time spent during meal periods
if the plaintiffs, as they allege, are primarily engaged in workrelated duties during these breaks.
Silver Care does not argue that the plaintiffs’ mealtime
compensation claim is a contractual dispute, as the dissent
posits.
It recognizes that the plaintiffs’ mealtime
compensation claim is based on the FLSA and how
compensable work time is defined under that statute. Instead,
it relies on our consideration of the characterization of the
meal break in the CBA in Babcock to support its contention
that “[i]n order to determine . . . to whom the benefit of the
meal break inures, there must be an interpretation of the
32

Babcock v. Butler Cty., 806 F.3d 153, 157 n.7 (3d Cir.
2015) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944)).
33
Id. at 156.
34
Id. at 157.
35
Id. at 158.

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CBA.”36 Among the disputed “interpretations” that Silver
Care seeks to arbitrate are: (1) the actual length of the meal
breaks—Silver Care alleges that different sections within the
nursing home sometimes combine the unpaid meal break with
the paid breaks, extending meal breaks to 45 minutes or an
hour, for which only 30 minutes are unpaid;37 (2) “the
practices, customs and usages of the parties with respect to
what happens if an employee allegedly is interrupted during a
meal break”38—whether the interrupted time is normally
“considered part of the paid portion of the break or the unpaid
portion of the break?;”39 and (3) practices under the CBA
regarding the types of restrictions, if any, placed upon the
employees during their meal breaks, “what are considered
interruptions of the meal breaks, and how interruptions are
handled during the meal breaks.”40
All of these so-called disputed “interpretations” of the
CBA, however, are factual questions—length of meal breaks,
types of interruptions, how they were handled, and whether
the plaintiffs ever received compensation due to these
interruptions.41 Silver Care cannot rely on Babcock to
Appellant’s Br. at 48.
Id.
38
Id. at 49
39
Id.
40
Id. at 50.
41
Silver Care’s attempt to distinguish these inquiries from
factual disputes is unpersuasive. In its reply brief, Silver Care
states that “making simple factual determinations of whether
the meal break was interrupted and whether the employee
worked during the meal break” is not sufficient, because
“there first has to be a determination made, whether, if there
36
37

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transform these factual disputes inherent to any FLSA claim
into disputes over provisions of the CBA subject to
arbitration.
In Babcock, we determined that the meal period at
issue there inured primarily to the benefit of the employees by
looking at both the facts and the CBA.42 First, we found that
though the plaintiffs faced some restrictions during their meal
breaks, “on balance, these restrictions did not predominantly
benefit the employer,” particularly because the plaintiffs
could “request authorization to leave [the workplace] for their
meal period and could eat lunch away from their desks.”43
Second, we separately considered the CBA, which we
thought was favorable for the employer’s position, because
the CBA “provide[d] corrections officers with the benefit of a
partially-compensated mealtime and mandatory overtime pay
if the mealtime is interrupted by work.”44
Notably, our consideration of the CBA was limited to
reading the text. We did not collapse the factual inquiry and
the consideration of the CBA into one. Nor could we. To
is an interruption, the interruption is considered part of the
paid portion of the break or the unpaid portion of the meal
break.” Appellant’s Reply Brief at 11. Silver Care never
makes clear why it matters to an FLSA claim how the CBA
would categorize the meal time interruptions. Either the
plaintiffs received compensation for interruptions during their
meal time, or they did not. The plaintiffs’ claim is based on
the FLSA rather than the CBA.
42
Babcock, 806 F.3d at 158.
43
Id. at 157.
44
Id.

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characterize an essentially factual inquiry as a dispute of
practices or custom under the CBA such that arbitration is
necessary would be to circumvent Supreme Court precedent
that a plaintiff cannot be compelled to arbitrate his or her
federal statutory claims without a clear and unmistakable
waiver.45
Here, Silver Care has not pointed to any disputes over
the text of the CBA, which provides that “meal periods and
breaks shall be free and uninterrupted, and employees shall
not be on call. However, in emergencies, employees are
expected to respond.”46 Instead, Silver Care raises only
disputes about what actually happens during these meal
breaks. Thus, Silver Care’s reliance on Babcock, to transform
its factual disputes into contractual ones subject to the
arbitration clause, is misplaced.
***
In sum, neither of the plaintiffs’ FLSA claims depend
on disputed interpretations of CBA provisions such that
arbitration is necessary.47

45

Pyett, 556 U.S. at 260.
A 171.
47
The plaintiffs also raised some threshold questions
regarding whether the arbitration clause in the CBA is
enforceable at all. We need not address these questions
because, even assuming the arbitration clause is enforceable,
arbitration is inappropriate in this case where the plaintiffs’
FLSA claims do not depend upon any disputed interpretation
of the CBA.
46

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III.

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Conclusion

For the foregoing reasons, we will affirm the District
Court’s denial of Silver Care’s motion to dismiss or to stay
the proceedings pending arbitration.

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Tymeco Jones, et al v. SCO Silver Care Operations LLC
No. 16-1101
_________________________________________________
AMBRO, Circuit Judge, dissenting
As I read the Majority’s opinion, it considers
plaintiffs’ two claims brought under the Fair Labor Standards
Act (“FLSA”) (a pay-differentials claim and a meal-break
claim) as independent from the applicable collective
bargaining agreement (“CBA”). Because I believe both of
those claims rest on terms covered by the CBA, and because I
believe our holding in Vadino v. A. Valey Engineers, 903 F.2d
253 (3d Cir. 1990), controls, they should first be arbitrated as
the parties had agreed.
Vadino involved a union member challenging his pay
rate and overtime compensation under the FLSA. The
relevant CBA between the union and Vadino’s employer set
out various pay grades given the worker’s title and job
qualifications. Using that pay scale, Vadino argued that he
was entitled to receive a higher wage and thus should have
received overtime commensurate with it. The CBA also
provided for a grievance process that culminated in
arbitration.
Although Vadino’s claim for overtime implicated the
FLSA, we held that when a dispute arises “as to the correct
wage rate under a [CBA]” that also involves a “claim under
the overtime provision of the FLSA, the procedure we
envision is to decide the contract interpretation issue through
the grievance procedure to arbitration.”
Id. at 266.
“Concurrent with that, the employee may bring a FLSA
claim, but the FLSA overtime claim would be dependent
upon the resolution . . . of the contract interpretation issue.”
Id. That holding applies to the case before us.

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First, a central dispute between the parties involves the
“correct wage rate” under the CBA: the pay differentials.
Plaintiffs assert that the periodic increase in their weekly
wages from the pay differentials was not reflected in their
regular rate of pay for the purposes of calculating overtime.
Silver Care, however, contends that overtime for those pay
differentials was reflected in the pay differentials themselves
(for example, under the implied terms of the CBA plaintiffs
were not given the $3 per hour increase they received but
rather a $2 per hour increase, and the extra dollar they
received in wages was built-in overtime payment). The
parties clearly disagree as to what comprised those pay
differentials and what was the correct pay-differential wage.
I part ways with my colleagues that this dispute is
“completely irrelevant to a court’s analysis of the proper
overtime payment owed to the plaintiffs.” If anything, what
overtime is owed to plaintiffs depends on interpreting what
the parties agreed regarding the breakdown of the pay
differentials and what component of them is considered
compensable wages for calculating overtime. Under Vadino,
that interpretation first should be made by an arbitrator per
the arbitration provision in the CBA. Because these claims
involve disputed interpretations of the CBA, this case is not
like Bell v. Southeastern Pennsylvania Transportation
Authority¸733 F.3d 490 (3d Cir. 2013), in which we held that
FLSA claims need not be arbitrated so long as they are
completely independent of any interpretation of the applicable
CBA.
Second, plaintiffs’ claim that they should be
compensated for work performed during unpaid meal breaks
also falls within the CBA. The FLSA makes no mention of
meal breaks. Instead, the right to uninterrupted meal breaks
is created by the CBA, providing that “meal periods and
breaks shall be free and uninterrupted, and employees shall
not be on call. However, in emergencies, employees are

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Case: 16-1101

Document: 003112625776

Page: 21

Date Filed: 05/18/2017

expected to respond.” Plaintiffs argue that the unpaid,
uninterrupted breaks to which they were entitled in the CBA
were in fact interrupted and they should be compensated for
the work performed during that time. But their FLSA claim
for compensation depends entirely on a breach-of-contract
claim. If Silver Care did not violate the terms of the CBA by
interrupting their guaranteed unpaid breaks, there would be
no cause of action for relief. Thus the alleged breach of the
CBA is a claim the parties agreed to arbitrate.
Furthermore, the text of the CBA is unclear as to what
constitutes an interruption. Would being understaffed, as
plaintiffs allege, be an emergency under the CBA? And if
interrupted, could plaintiffs count that as one of their two
interrupted breaks and take an uninterrupted break later?
These questions go to the heart of what the parties intended
when entering into the CBA. Because this FLSA claim is
predicated on a breach-of-contract claim that also warrants
interpretation of the CBA, the parties’ arbitration agreement
should be honored and the issue resolved by an arbitrator.
As the claims before us require in my view an
interpretation of the CBA before proceeding to the alleged
FLSA violations, and CBA interpretations require arbitration
here, I respectfully dissent.

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