Perkins v. 199 SEIU United Healthcare Workers East et al
Filing
110
MEMORANDUM AND ORDER. For the reasons in this Memorandum and Order, the defendant's motion for summary judgment (Docket no. 100) is granted. The Clerk of Court is respectfully directed to close this case. SO ORDERED. Granting 100 Motion for Summary Judgment. (Signed by Magistrate Judge James C. Francis on 10/31/2016) Copies transmitted this date. (rjm)
Rule 56.1 dated July 15, 2016 (“Def. 56.1 Statement”)), which
relies heavily on the stipulation the parties previously submitted
in order to narrow the issues in the case (The Parties’ Stipulation
Concerning Remaining Claims and Uncontested Facts filed July 1,
2016).
I have also relied on certain facts contained in the
affidavit the plaintiff submitted in opposition to the motion.
(Affidavit of Craig Perkins dated Aug. 16, 2016 (“Perkins Aff.”)).3
The Hospital assigns one Safety Officer to its Grand Concourse
building
for
each
Statement, ¶¶ 9-10).
of
three
eight-hour
shifts.
(Def.
56.1
In accordance with its interpretation of New
York City law, the Hospital requires that at least one person
3
The plaintiff’s affidavit largely fails to comply with Rule
56(c) of the Federal Rules of Civil Procedure, as it contains legal
argument and other statements that would be inadmissible as
evidence. See Fed. R. Civ. P. 56(c)(4) (“An affidavit . . . used
to support or oppose a motion must be made on personal knowledge,
set out facts that would be admissible in evidence, and show that
the affiant . . . is competent to testify on the matters stated.”).
It fails utterly to comply with Local Civil Rule 56.1(b), which
requires that
[t]he papers opposing a motion for summary judgment []
include a correspondingly numbered paragraph responding
to each numbered paragraph in the statement of the moving
party, and if necessary, additional paragraphs containing
a separate, short and concise statement of additional
material facts as to which it is contended that there
exists a genuine issue to be tried.
I therefore deem the facts included in the defendant’s Rule 56.1
Statement admitted. See, e.g., Liles v. New York City Department
of Education, 516 F. Supp. 2d 297, 301 n.3 (S.D.N.Y. 2007) (deeming
facts included in defendant’s Rule 56.1 Statement admitted where
plaintiff’s submission “fails to specifically counter” defendant’s
Rule 56.1 Statement); see also Suares v. Cityscape Tours, Inc., 603
F. App’x 16, 17–18 (2d Cir. 2015).
In addition, I will not
consider any factual assertion in the plaintiff’s affidavit that
does not comply with Rule 56(c). Any fact I have credited from the
plaintiff’s submission has not been disputed by the defendant.
2
certified as a Fire Safety Director by the New York City Fire
Department (“Fire Department”) “remain on or about the premises of
Grand Concourse at all times to monitor and provide assistance in
the event of an alarm activation or other emergency.”
(Def. 56.1
Statement, ¶ 11).
Mr. Perkins, a certified Fire Safety Director, is employed in
the Hospital’s Safety Department as a Safety Officer.
Statement, ¶¶ 1-2, 12).
(Def. 56.1
When he is assigned to work at the Grand
Concourse building, his primary work location is the Fire Command
Station, which houses the fire alarm control panel, an instrument
that both shows the location of any fire alarm activations in the
building and displays non-emergency alerts related to the fire
suppression systems within or around the building.
Statement, ¶¶ 15-16).
(Def. 56.1
While at the Fire Command Station, he has a
number of different duties, including monitoring the control panel.
(Def. 56.1 Statement, ¶¶ 16, 18). His work also routinely requires
him to leave the Fire Command Station to perform duties in other
areas, including around the exterior premises of the Hospital.
(Def. 56.1 Statement, ¶¶ 19-20; Perkins Aff., ¶¶ 6-7).
If an
emergency were to occur while he was away from the Fire Command
Station, he would receive notice of emergency alarm activations in
one of two ways: “through the overhead alarms and speaker-strobes
located throughout the building, which may be audible and visible
outside
the
building
around
the
perimeter”
or
communication to his cell phone, radio, or pager.
through
a
(Def. 56.1
Statement, ¶¶ 25-26). When the alarm system is triggered, the Fire
3
Department
is
automatically
notified.
(Perkins
Aff.,
¶
14;
Deposition of Fifi Dubois dated March 3, 2016 (“Dubois Dep.”) at
59).
However, when the system is “off-line” it is “removed from
active notification to the [F]ire [D]epartment.”
(Dubois Dep. at
59).
One half-hour of each Safety Officer’s eight-hour shift “is
automatically deducted . . . for [a] meal break[].”4
Statement, ¶ 14).
Meal breaks maybe taken at any time other than
the first or last half-hour of a shift.
35).
(Def. 56.1
(Def. 56.1 Statement, ¶
Although Safety Officers must clock in before and clock out
after their shifts using the Hospital’s fingerprint-scanning time
clocks, they need not do so before or after their meal breaks.
(Def. 56.1 Statement, ¶¶ 13-14).
break,
a
Safety
Officer
must
Instead, prior to taking a meal
inform
the
Department,
Telecommunications
Department.
(Def. 56.1 Statement, ¶ 24).
Hospital’s
Department,
and
Security
Engineering
He must stay on the
Grand Concourse premises during the meal break and carry his
“radio, cell phone and/or Fire Command pager” so that he can be
contacted by Hospital personnel in an emergency, which would
4
Mr. Perkins’ principal argument is that the thirty-minute
periods are not bona fide meal breaks, see, e.g., Reich v. Southern
New England Telecommunications Corp., 121 F.3d 58, 63-64 (2d Cir.
1997) (“SNET”) (interpreting 29 C.F.R. § 785.19 (“Bona fide meal
periods”)), and that, consequently, the Hospital violates the FLSA
and NYLL by not paying him for that time. (Plaintiff’s Memorandum
of Law in Opposition to Defendant[] Bronx Lebanon Hospital Center’s
Motion for Summary Judgment (“Pl. Memo.”) at 16; Perkins Aff., ¶¶
3-5, 11, 18-20, 22-23).
I use the term “meal break” in this
memorandum merely as a shorthand to refer to the thirty-minute
period for which Mr. Perkins is not paid, rather than as an
indication that the time constitutes a bona fide meal break.
4
require
his
return
to
the
Statement, ¶¶ 23, 27-28).
Fire
Command
Center.
(Def.
56.1
During meal breaks Security Officers
have access to Hospital facilities and may eat and drink, read, and
use
their
cell
activities.
phones
for
personal
business,
(Def. 56.1 Statement, ¶¶ 32-34).
among
other
If a meal break is
interrupted by an emergency, Hospital policy requires the Safety
Officer to “take a subsequent, uninterrupted meal break . . . or to
note the interruption in the [Fire Command Logbook] and notify his
supervisor so that he may be paid for the time.”
(Def. 56.1
Statement, ¶¶ 14, 36).5
According to the plaintiff, he is rarely contacted via radio
during a shift at Grand Concourse, and he “could not recall any
specific
instance
in
which
he
contacted
Safety
Department
administration about an interruption to his break time.”
56.1 Statement, ¶¶ 31, 40).
(Def.
Nevertheless, since approximately
2007, Mr. Perkins “has routinely recorded the phrase[s] ‘no lunch
or break,’ ‘no relief for lunch,’ ‘no lunch,’ or other similar
notations in the Fire Command Logbooks” due to “his position that
his meal breaks are not ‘bona fide’” because of the aforementioned
restrictions on his break-time movement and, consequently, his
break-time activities. (Def. 56.1 Statement, ¶ 41). There are no
records
indicating
that
he
has
ever
provided
notice
of
an
interrupted or missed meal break “in accordance with departmental
5
Similar restrictions apply to meal breaks in other Hospital
buildings to which Mr. Perkins is sometimes assigned. (Def. 56.1
Statement, ¶¶ 7-8, 42). However, I focus, as do the parties, on
practices at Grand Concourse.
5
requirements” during the period relevant to this case.
(Def. 56.1
Statement, ¶ 39).
Discussion
A.
Legal Standards
1.
Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure,
summary judgment is appropriate where “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as
a matter of law,” Fed. R. Civ. P. 56(a); Utica Mutual Insurance Co.
v. Munich Reinsurance America, Inc., 594 F. App’x 700, 701-02 (2d
Cir.
2014).
The
moving
party
bears
the
initial
burden
of
identifying “the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
A fact is
“material” if it “might affect the outcome of the suit under []
governing law,” and is genuinely in dispute “if the evidence is
such
that
a
reasonable
nonmoving party.”
248 (1986).
jury
could
return
a
verdict
for
the
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
The movant may discharge this burden by showing that
the nonmoving party has “fail[ed] to make a showing sufficient to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial.”
Celotex, 477 U.S. at 322.
If the movant meets this initial burden, the opposing party
then must come forward with “specific facts showing that there is
a genuine issue for trial.”
Id. at 324 (quoting former Fed. R.
Civ. P. 56(e)). In assessing the record to determine whether there
6
is a genuine issue of material fact, the court must resolve all
ambiguities and draw all factual inferences in favor of the
nonmoving party.
Anderson, 477 U.S. at 255; Vann v. City of New
York, 72 F.3d 1040, 1048-49 (2d Cir. 1995).
inquire
whether
“there
is
sufficient
But the court must
evidence
favoring
the
nonmoving party for a jury to return a verdict for that party” and
grant
summary
judgment
where
the
nonmovant’s
evidence
is
conclusory, speculative, or not significantly probative. Anderson,
477 U.S at 249-50.
“The litigant opposing summary judgment ‘may
not rest upon mere conclusory allegations or denials,’ but must
bring forth ‘some affirmative indication that his version of
relevant events is not fanciful.’” Podell v. Citicorp Diners Club,
Inc., 112 F.3d 98, 101 (2d Cir. 1997) (quoting Quinn v. Syracuse
Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980)); see
also Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986) (nonmoving party “must do more than simply
show that there is some metaphysical doubt as to the material
facts”); Goenaga v. March of Dimes Birth Defects Foundation, 51
F.3d 14, 18 (2d Cir. 1995) (nonmovant “may not rely simply on
conclusory
statements
or
on
contentions
supporting the motion are not credible”).
that
the
affidavits
“Where the record taken
as a whole could not lead a rational trier of fact to find for the
non-moving
party,
there
is
no
‘genuine
issue
for
trial.’”
Matsushita, 475 U.S. at 587 (quoting First National Bank of Arizona
v. Cities Service Co., 391 U.S. 253, 288 (1968)).
7
2.
Meal Breaks
“The central issue in mealtime cases is whether employees are
required to ‘work’ as that term is understood under the [relevant
statutes].”6
SNET, 121 F.3d at 64.
In this Circuit, whether an
employee’s activities “could potentially constitute ‘work’” is a
question of law for the court, and therefore susceptible to
decision on a motion for summary judgment.
Singh v. City of New
York, 418 F. Supp. 2d 390, 397 (S.D.N.Y. 2005) (quoting Holzapfel
v. Town of Newburgh, 145 F.3d 516, 521 (2d Cir. 1998)), aff’d, 524
F.3d 361 (2d Cir. 2008).
After the court defines “work” as a matter of law, the
fact finder determines “not only how much of plaintiff’s
time . . . [falls] within the court’s definition of
‘work’ and would be compensable, but also how much of
that time was spent with the employers actual or
constructive knowledge.” If a court determines that the
activity at issue constitutes “work,” an employee . . .
is [] entitled to compensation for those hours of work
performed of which the employer had actual or
constructive knowledge.
Id. (first and second alterations in original) (internal citation
omitted) (quoting Holzapfel, 145 F.3d at 521, 524); see also Gibbs
v. City of New York, 87 F. Supp. 3d 482, 490 (S.D.N.Y. 2015) (“It
falls to the trial judge to determine whether the employee’s
activities ‘could potentially constitute “work,”’ while it falls to
the jury to determine how much time was spent ‘within the court’s
definition of “work.”’” (quoting Holzapfel, 145 F.3d at 521)).
The
Second
Circuit
has
held
6
that
an
employee
must
be
The NYLL “incorporate[s] FLSA standards for determining
whether time worked is compensable time.” Hamelin v. Faxton-St.
Luke’s Healthcare, 274 F.R.D. 385, 393 (N.D.N.Y. 2011).
8
“compensat[ed] for a meal break during which a worker performs
activities predominantly for the benefit of the employer.”
SNET,
121 F.3d at 64; accord Alonso v. 144 Ninth Gotham Pizza, Inc., Nos.
12 Civ. 3133 et al., 2016 WL 4257526, at *1 (S.D.N.Y. Aug. 10,
2016).
bound.”
This is a “flexible” standard that is “necessarily factSNET, 121 F.3d at 64.
The same standard applies if the
employee is “on call” during the meal period.
Babcock v. Butler
County, 806 F.3d 153, 155-56 (3d Cir. 2015) (adopting “predominant
benefit” test in case where employees must remain on site to
respond to emergencies during unpaid portion of lunch break);
Ruffin v. MotorCity Casino, 775 F.3d 807, 809, 811 (6th Cir. 2015)
(using “predominant benefit” test in case where employees must
respond to emergencies during meal breaks); Haviland v. Catholic
Health Initiatives-Iowa Corp., 729 F. Supp. 2d 1038, 1059-60 (S.D.
Iowa 2010) (same).
It is the plaintiff’s burden to show that he
“in fact performed work for which [he was] improperly compensated.”
SNET, 121 F.3d at 67.
B.
Analysis
As the defendant notes, in determining whether a meal break
is compensable, courts consider “the limitations and restrictions
placed upon the employees, the extent to which those restrictions
benefit the employer, the employee’s duties during the meal period,
the frequency of meal period interruptions, and whether employees
are allowed to resume an interrupted break.”
(Defendants Bronx-
Lebanon Hospital Center’s Memorandum of Law in Support of Its
Motion for Summary Judgment at 8-9).
9
Here, the relevant facts are
undisputed.
During his shifts, Mr. Perkins is the only Safety
Officer and Fire Safety Director on duty at Grand Concourse.
One-
half hour is automatically deducted from Mr. Perkins’ eight-hour
work day for a meal break.
The restrictions on the time at which
he may take his meal break are minimal.
They are somewhat more
onerous with regard to his location and activities during this
period because he must stay on the Grand Concourse premises with a
communications device so that he can respond in the case of an
emergency.
later,
If his meal break is interrupted, he is to take a
uninterrupted
uninterrupted
meal
break.
break
If
he
is
because
he
unable
has
been
to
take
called
to
an
an
emergency, there are policies in place to enable him to be paid for
the time spent working.
However, his meal break has rarely, if
ever, been interrupted.
Recent cases indicate that Mr. Perkins is not “perform[ing]
activities predominantly for the benefit of [his] employer,” SNET,
121 F.3d at 64, during the thirty-minute period for which he is not
paid.
For example, in Ruffin, the plaintiffs, security guards at
a casino, were required to “remain on casino property during meal
periods, monitor two-way radios, and respond to emergencies if
called to do so.”
found
that
these
compensable “work.”
Ruffin, 775 F.3d at 809.
restrictions
and
duties
The Sixth Circuit
did
not
constitute
The court noted that monitoring the radio was
a “de minimis activity, not a substantial job duty” and that the
guards were able to “spen[d] their meal periods doing exactly what
one might expect an off-duty employee to be doing on a meal break
10
[--]
eating,
socializing,
reading,
surfing
the
Internet,
and
conducting personal business on their smartphones” -- particularly
as
the
meal
emergencies.
periods
Id.
were
at
“only
811,
occasionally”
813-14.
Because
interrupted
the
by
“plaintiffs
perform[ed] no substantial job duties during meal breaks, emergency
calls rarely -- if ever -- interrupt[ed] the guards’ meals, and the
guards pursued their ‘mealtime adequately and comfortably,’” the
defendant was entitled to summary judgment on the plaintiffs’ meal
break claim.
Id. at 815 (quoting Hill v. United States, 751 F.2d
810, 814 (6th Cir. 1984)).
Similarly, in Babcock, prison guards
who were required to spend their meal breaks in uniform, within the
“physical building of the prison” and close to emergency response
equipment so that they could respond to emergencies if required,
were not entitled to wages for the fifteen minutes of their meal
break that was unpaid.
Babcock v. Butler County, No. 12 CV 394,
2014 WL 688122, at *6, 8-9 (W.D. Pa. Feb. 21, 2014), aff’d, 806
F.3d 153 (3d Cir. 2015).
Although the employees “face[d] a number
of restrictions during their meal period” -- they could not “run
personal errands, sleep, breathe fresh air, or smoke cigarettes,”
for example -- their meal-break activities “did not predominantly
benefit the employer.”
Babcock, 806 F.3d at 155, 157.
And in
Haviland, public safety officers at a hospital complex “[were] not
permitted to leave [the hospital’s] premises during a meal break
period, and [were required to] carry a radio and respond to
situations that may arise” during their meal break.
F. Supp. 2d at 1040, 1061.
Haviland, 729
The court recognized that “responding
11
to tasks, waiting to be engaged to respond to tasks, acting as a
visual deterrent, and simply being a presence in the facilities to
which they were assigned” were among the officers’ functions;
however, the restrictions imposed and duties required during the
meal
breaks
did
not
convert
the
non-compensable
compensable “work” as defined by the FLSA.7
break
to
Id. at 1058, 1066-73;
see also id. at 1061-62 (collecting cases holding that being
required to remain on employer’s premises and monitor radio to
respond to emergent situations did not “convert[] meal time to work
time”).
Moreover, a Department of Labor opinion letter indicates that
Mr. Perkins’ meal breaks are not compensable. The letter addresses
the question of whether sales associates who could leave the store
premises during their half-hour lunch period “only if at least two
other store associates remain[ed] in the store” were entitled to be
paid for their break if it was uninterrupted by a circumstance
requiring them to return to the sales floor.
United States
Department of Labor, Opinion Letter, Fair Labor Standards Act, 1997
WL 998005, at *1 (DOL Wage-Hour Feb. 12, 1997) (“DOL 2/27/97
Opinion”).
The agency opined that the sales associates did not
7
Mr. Perkins’ attempt to distinguish Haviland on the basis
that “[t]here was no indication in the text of that case that the
security guards were responsible for responding to emergencies that
potentially were building-wide” (Pl. Memo. at 14), is unavailing.
First, it is inaccurate. Among the plaintiffs’ responsibilities in
that case was responding to fire alarms. Haviland, 729 F. Supp. 2d
at 1064.
Moreover, Mr. Perkins’ does not explain why this
distinction should make a difference to the question of whether a
meal break is spent predominantly for the benefit of the employer.
12
have to be compensated “[if] their meal period [was] totally
uninterrupted or [] only interrupted for rare and infrequent
emergency calls to duty.”8
DOL 2/27/97 Opinion, at *1. Here, as
noted, the plaintiff is rarely, if ever, interrupted during his
meal break.
Mr. Perkins does not effectively counter this authority.
Instead, he cites cases that are factually inapposite.
Armour &
Co. v. Wantock, 323 U.S. 126 (1944), and Skidmore, 323 U.S. 134
(1944), both involved fire protection officers who were required to
be on call and remain on or near the employer’s premises after
their regularly scheduled work hours.
Skidmore, 323 U.S. at 135-36.
Armour, 323 U.S. at 127;
The Court in Armour held that,
although the employees largely spent the on-call time waiting for
emergency calls and sleeping, eating, “or entertain[ing] themselves
pretty much as they chose,” the time was working time:
We think the Labor Standards Act does not exclude as
working time periods contracted for and spent on duty in
the circumstances disclosed here, merely because the
nature of the duty left time hanging heavy on the
employees’ hands and because the employer and employee
cooperated in trying to make the confinement and idleness
incident to it more tolerable.
323 U.S. at 128, 134.
In Skidmore, under similar facts, the Court
remanded the case for the court below to determine whether the
8
Department of Labor Opinion Letters are entitled to
deference “to the extent that [they] have the ‘power to persuade.’”
cf. Christensen v. Harris County, 529 U.S. 576, 587 (2000) (quoting
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)); Hill v.
Delaware North Companies Sportservice, Inc., __ F.3d __, __, 2016
WL 5746294, at *6 (2d Cir. 2016) (same). The Department of Labor’s
position in this opinion letter is supported by the cases discussed
above, and I therefore find it persuasive.
13
after hours on-call time constituted work time.
323 U.S. at 135-
36, 140. Here, of course, Mr. Perkins has no work responsibilities
during the time after his shift ends, and the question asked in
those cases -- that is, whether “the employee was engaged to wait,”
in which case the time is compensable, or he “waited to be
engaged,” in which case it is not, Skidmore, 323 U.S. at 137 -- is
unhelpful in determining whether Mr. Perkins’s thirty-minute break
was spent predominantly for the benefit of the Hospital.
Mr. Perkins also relies on Owens v. Local No. 169, Association
of Western Pulp and Paper Workers, 971 F.2d 347 (9th Cir. 1992),
which outlined a number of factors to be examined “in determining
whether an employee plaintiff had use of on-call time for personal
purposes.”
(Pl. Memo. at 7).
However, that case, too, concerns
employees who were on call after their normal daytime shifts.
Owens, 971 F.2d at 348.
Indeed, each of the cases from which Owens
derives its factors involves either employees who were on call
during off-duty hours, Armour, 323 U.S. at 134; Renfro v. City of
Emporia, 948 F.2d 1529, 1531 (10th Cir. 1991); Bright v. Houston
Northwest Medical Center Survivor, Inc., 934 F.2d 671, 672 (5th
Cir. 1991) (en banc); Brock v. El Paso Natural Gas Co., 826 F.2d
369, 370 (5th Cir. 1987), or employees whose entire work period was
spent on call, Cross v. Arkansas Forestry Commission, 938 F.2d 912,
914 (8th Cir. 1991); Norton v. Worthern Van Service, Inc., 839 F.2d
653, 654 (10th Cir. 1988).
See Owens, 971 F.2d at 351 nn.8-14.
It
is not surprising, then, that the factors the Ninth Circuit used to
determine whether that on-call time was spent predominantly for the
14
benefit of the employer -- such as whether employees were required
to live on premises, had their movements excessively restricted
“geographically,” or had to respond to calls within an “unduly
restrictive” time period -- are better suited to determining the
question of “predominant benefit” where the employee is on call for
extended periods of time.
Owens, 971 F.2d at 351.
That is not the
case here, where on-call time consists of thirty minutes during Mr.
Perkins’ regularly-scheduled shift.
Mr. Perkins’ best argument derives from the fact that only one
Safety Officer/Fire Safety Director is assigned to Grand Concourse
each shift and that New York City law requires the presence of a
Fire Safety Director “on or about the premises . . . at all times.”
(Def. 56.1 Statement, ¶ 11; Pl. Memo. at 5-6).
In finding that
employees who were required to stay at their work site during lunch
in order “to secure the area and its equipment and prevent possible
harm to the public” were entitled to compensation, the court in
SNET
noted
that
the
employees
“perform[ed]
valuable
security
service” for the company during their lunch break: “[T]he workers’
on-site presence is solely for the benefit of the employer and, in
their absence, the company would have to pay others to perform
those services.”
121 F.3d at 63, 65; see also Babcock, 806 F.3d at
161 (Greenaway, J., dissenting) (“As in [SNET], without Plaintiffs’
presence at the [correctional] facility during meals, Defendant
could
be
required
Plaintiff’s
to
allegations
hire
others
regarding
during
the
that
time
restrictions
period.
on
their
movement and activities are sufficient to state a claim under the
15
FLSA that the meal period is compensable work.”). However, neither
SNET nor subsequent cases indicate that the mere fact that the
employer receives some benefit from an employee’s presence on the
premises is determinative; rather, the cases make clear that the
predominant benefit inquiry is fact-specific. See, e.g., SNET, 121
F.3d at 64.
In SNET, the employees had “substantial duties” to
perform, id. at 63 -- including consistent surveillance to ensure
the security of valuable equipment and the safety of a curious
public on a dangerous work site, as well as addressing inquiries
from the public -- such that they “carr[ied] out compensable
responsibilities and duties on open job sites for at least 80% of
their
lunch
periods.”
Reich
v.
Southern
New
England
Telecommunications Corp., 892 F. Supp. 389, 394-96 (D. Conn. 1995).
On the other hand, in Babcock, although the prison guards were
required to stay on premises to maintain a “safe inmate-tocorrections officer ratio,” Babcock, 2014 WL 688122, at *9, and
remain near their equipment to efficiently respond to an emergency,
those restrictions and duties did not constitute “work” as defined
by the FLSA, Babcock, 806 F.3d at 157.
Similarly, in Haviland,
security officers who worked in single-person shifts were required
to stay on premises and be available in case of an emergency.
F. Supp. 2d at 1041, 1059-60.
Nevertheless, the restrictions did
not require that they be paid for their meal break.
See id. at
1066-69 (distinguishing restrictions at issue in SNET).
here.
729
So it is
Although the Hospital indisputably receives some benefit
from Mr. Perkins’ presence on site, he has the ability to spend his
16
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