The Fair Labor Standards Act answers that question with its regulation 29 C.F.R. § 785.19. It explains “Bona fide meal periods are not worktime.” The employees' mealtimes are not considered as time working. However, “The employee must be completely relieved from duty for the purposes of eating regular meals.” The regulation further explains, “The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating.” (Emphasis added).

Does that mean you can leave the premises? No, it does not as the regulation explains, “It is not necessary that an employee be permitted to leave the premises if he is otherwise completely freed from duties during the meal period.” 

So, what makes a good case? Obviously not every circumstance, even if unlawful, will make a desirable case for litigation. Part of the reason for that is that there are two different tests applied by federal appellate courts. 

The 11^th Circuit follows the “in fact relieved” minority test. In Kohlheim v. Glynn County, 915 F.2d 1473, 1477 (11th Cir. 1990) the court ruled "[T]he essential consideration in determining whether a meal period is a bona fide meal period or a compensable rest period is whether the employees are in fact relieved from work for the purpose of eating a regularly scheduled meal". (Emphasis added).

This case involved firefighters and emergency medical technicians who generally worked 24-hour tours of duty and then were off for 48 hours. However, the tour of duty did not pay for time at 3 meals dropping the compensation three hours. The 11^th Circuit found that unless the firefighter was completely relieved of duty, such as not being required to respond to an emergency, then the mealtime should be compensable. A substantial benefit was received by the county by having those firefighters available during mealtimes.

The majority test is called the predominant benefits test.  It looks at whether the employee is primarily engaged in work activity during the meal break. See, Babcock v. Butler County, 806 F.3d 153, 156 (3d Cir. 2015). The question in that case involved whether prison officers were required to be paid while on a meal break but must remain available to respond to emergencies, remain near emergency response equipment, and stay in uniform. The court said that under the totality of the circumstances there is not a predominant benefit to the employer and so the officers were not entitled to pay.

Even though more difficult, it is possible to prevail under the predominant benefit test. In Herrera v. Comme Des Garcons, Ltd.84 F.4th 110 (2d Cir. 2023), a circuit which follows that test, thirteen plaintiffs who worked for a high-end fashion retailer, alleged that they had to work in excess of 40 hours per week. This was partly due because they “were not completely relieved from duty during lunch breaks." They were also misclassified as managers so as to avoid overtime. They filed suit but their case was dismissed because the district court felt they failed to allege the specific number of hours they worked in any given week.

On appeal the Second Circuit reversed, finding that enough specificity was alleged to state a claim under the FLSA. Plaintiffs pled allegations about their regular schedule and the tasks that gave rise to working beyond that regular schedule. The case was reversed and remanded back to the district court.

So back to our question, the answer will turn on the facts of the specific case and the circuit in which the case is heard. The 11^th Circuit, with its more rigorous interpretation of the regulation, looks to be better than those circuits adopting the predominant benefit test.