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Legal Report May 2016


Compensation. An employer does not have to compensate employees for meal periods during the work day if the employer does not predominantly benefit from the time employees spend eating, an appeals court ruled.

The Fair Labor Standards Act (FLSA) requires an employee who works more than 40 hours a week be paid overtime of at least one and one-half times the regular rate. A collective bargaining agreement (CBA) between Butler County, Pennsylvania, and employees who work at the Butler County Prison provides that corrections officers work shifts of eight hours and 25 minutes, which include a one-hour meal period. Forty-five minutes of that meal period are paid and 15 minutes are unpaid. 

During their meal period, corrections officers may not leave the prison without permission from the warden or deputy warden, and must remain in uniform, in close proximity to emergency response equipment, and on call to respond to emergencies. 

The corrections officers filed a suit in district court asking for compensation for the full meal period. Officers claimed that because of the current policy, they cannot run personal errands, sleep, breathe fresh air, or smoke cigar­ettes during mealtime, according to the suit. And “if an emergency or unexpected situation arises, the officers must respond immediately, in person, in uniform, and with appropriate response equipment.”

Because of these restrictions, the officers said they should be compensated for a full hour of work—not just 45 minutes. 

The county attempted to dismiss the suit, arguing that corrections officers’ meal periods were not compensable work because the officers received the “predominant benefit” of the meal period. This means that officers were primarily engaged in nonwork-related duties during meal times, so the county should not have to pay them.

The district court agreed with the county and dismissed the case. The officers appealed, and their case reached the U.S. Court of Appeals for the Third Circuit, which also ruled in the county’s favor.

The appeals court explained in its opinion that while the officers face a number of restrictions during their meal period, “the district court correctly found that, on balance, these restrictions did not predominantly benefit the employer.” This is because the officers could request authorization to leave the prison for their meal period and could eat lunch away from their desks. 

Additionally, the appeals court ruled in favor of the county because of the CBA between the county and the prison’s employees. According to the written opinion of the case “…although the CBA is silent on the compensability of the 15-minute period, it provides corrections officers with the benefit of a partially-compensated mealtime and mandatory overtime pay if the mealtime is interrupted by work.”

The court also noted that “the CBA, then, assumes ‘that generally an officer is not working during a meal period, but provides for appropriate compensation when an officer actually does work during the meal.’” (Babcock v. Butler County, U.S. Court of Appeals for the Third Circuit, No. 14-1467, 2015)​


Cybersecurity. President Barack Obama signed two executive orders to bolster U.S. cybersecurity efforts. 

One executive order creates a Commission on Enhancing National Cyber­security. It will be housed within the U.S. Department of Commerce and made up of 12 members appointed by the president. 

The commission is charged with making detailed recommendations to strengthen cybersecurity in both the public and private sectors, including how to bolster the protection of systems and data, how to ensure that cy­ber­security is a core element of the technologies associated with the Internet of Things and cloud computing, and how to further invest in research and development initiatives that can enhance cybersecurity.

The commission will compile its recommendations into a report for the president by December 1, 2016, and it will be made public within 45 days of its submission.

The second executive order tasks the director of the Office of Management and Budget (OMB) to issue a revised policy on the role and designation of senior agency officials for privacy. The revised policy will provide guidance for senior agency officials charged with protecting privacy. The policy will outline the privacy responsibilities at various agencies, required level of expertise, adequate level of resources, and other matters as determined by the director. Agencies will then be required to implement those policy revisions.

The order also creates a Federal Policy Council, which will be the principal interagency forum to improve government privacy practices. It will assist the senior agency official for privacy at each agency in better coordinating and collaborating, educating the federal workforce, and exchanging best practices on privacy. 

Members of the council will include the deputy director for management of OMB and the senior agency officials for privacy at the departments of state, treasury, defense, justice, interior, agriculture, commerce, labor, health and human services, homeland security, housing and urban development, transportation, energy, education, and veterans affairs. Senior agency officials for privacy from various other federal agencies, including the Office of the Director of National Intelligence, will also be part of the council.

The council will develop recommendations for OMB on federal government privacy policies and requirements, and coordinate and share best practices for protecting privacy and implementing appropriate privacy safeguards, among other duties.

Earthquakes. President Obama signed an executive order that creates new earthquake safety requirements for federal buildings.

Under the order, agencies responsible for the design and construction of a new building or an alteration to an existing building must ensure that it is designed, constructed, or altered in accordance with appropriate earthquake-resistant design and construction codes and standards outlined by the order. 

Each agency responsible for a building leased for federal occupancy must ensure that it leases only buildings that have been designed and constructed in accordance with earthquake-resistant design and construction standards.

Additionally, the order creates the Interagency Committee on Seismic Safety in Construction (ICSSC) to develop, issue, and maintain the Standards of Seismic Safety for Existing Federal Owned and Leased Buildings as the “minimum level acceptable for managing the earthquake risks in that building,” the order said.

Agencies subject to the order will also designate one or more seismic safety coordinators to serve as focal points for the agency’s compliance with the order and to participate in the ICSSC, when appropriate. Agencies will also be required to submit biennial reports beginning in 2018 to the director of OMB and the director of the National Institute of Standards and Technology on their progress in implementing the order.

Privacy. President Obama signed into law legislation that gives European Union (EU) citizens the right to challenge the misuse of their personal data in U.S. court under the Privacy Act of 1974. 

The Judicial Redress Act (P.L. 114-126) was pushed through Congress quickly by the Senate because it was a prerequisite of a law enforcement data-sharing umbrella agreement between the EU and the United States.

The law allows the U.S. Department of Justice to identify foreign countries or regional economic integration organizations—like the EU—whose natural citizens may bring civil actions against U.S. government agencies if these agencies unlawfully disclose citizens’ personal information. 

The agreement applies only to government exchanges of information, but an amendment to the law also requires countries covered by it to allow commercial data to be transferred to the United States without impeding U.S. national security interests. It is unclear if this will have any impact on the negotiations over the new Safe Harbor agreement, known as Privacy Shield.