Plaintiffs' Motion For Summary Judgment On Liability Granted Re Unpaid Meal Breaks

Case 1:16-cv-23170-FAM Document 119 Entered on FLSD Docket 03/27/2017 Page 1 of 14
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
Miami Division
Case No.: 1:16-cv-23170-FAM
ELLIOT GELBER, &

all others similarly situated, All Pretrial Proceedings
Referred to Judge O’Sullivan
Plaintiffs,
v.
AKAL SECURITY, INC.,
Defendant.
_______________________________________/
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON LIABILITY
Pursuant to Rule 56 and Local Rule 7.1, Plaintiffs hereby file their Motion for Summary
Judgment on Liability. Plaintiffs are entitled to a judgment on liability as a matter of law
because (i) there is no evidence that the arbitrary one-hour deduction from their daily timesheets
constitutes a non-compensable “bona-fide meal period” within the meaning of the Fair Labor
Standards Act and (ii) Akal admits it has a pattern or practice of violating its own official
company policy when it docks all Plaintiffs for an hour of compensable time at the end of each
shift and then calls it a meal break without any record of any actual meal break. 1
1
Akal’s illegal employment practice is company wide and impacts the ASOs identically,
except as to the amount of damage suffered by any individual ASO. Compensating a class of
employees on the incorrect “assumption” that they took “an unpaid thirty minute meal break”
during their shift violates the Act. Donovan v. Bel-Loc Diner, Inc., 780 F. 2d 1113, 1115 (4th
Cir. 1985). There, “minimum wage violations were established by testimony establishing a
‘pattern or practice’ of employees’ failure to take bona fide meal periods….” Id. at 1116.
Because the testimony established a pattern or practice of violating the Act, not every employee
was required to testify to establish liability or damages. Id.
KAPLAN YOUNG & MOLL PARRÓN, 600 Brickell Avenue, Suite 1715, Miami, Florida 33131, 305.330.6090
www.kymplaw.com
Introduction
The class members – Air Security Officers (“ASOs”) – employed by Akal Security, Inc.
are non-exempt, hourly employees who are required to be compensated for all hours worked
between the start time and stop time of a daily mission. [SOF ¶¶ 1, 4]. On some shifts, however,
the ASOs’ supervisor deducts an arbitrary one-hour of compensable time after the shift is over
and after the ASOs sign and submit their daily timesheets. [SOF ¶¶ 14, 16, 19, 26-30].
According to Akal’s supervisor, he does this merely to comply with Akal’s “official” corporate
policy to deduct an unpaid meal break and not to record an actual meal break. [SOF ¶ 20]. Akal
concedes that the one-hour “lunch break” on the daily timesheets is a recordkeeping practice
only (albeit an illegal one) and that the one-hour identified does not correspond to any actual
meal break. [SOF ¶¶ 28-29]. Moreover, it is not surprising that Akal maintains no records of
actual so-called meal periods because it is undisputed that there are no actual meal periods.
[SOF ¶¶ 9-13]. Akal’s admitted manipulation of time records is illegal and results in each ASO
losing one-hour of compensable time on over 50% of their daily missions.
Standard of Proof
Plaintiffs will not bore the Court with the well-established standard for granting summary
judgment. The burden of proof, however, is on Akal as the employer to establish that the
arbitrary meal break deductions were and remain a bona-fide meal period within the meaning of
the FLSA. When the employer fails to have accurate time records – as is the case here – the
burden of proof shifts to the employer to disprove that the employee is entitled to compensation.
See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946) (“The burden then shifts
to the employer to come forward with evidence of the precise amount of work performed or with
evidence to negative the reasonableness of the inference to be drawn from the employee’s
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evidence.”); Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1315 (11th Cir. 2013)
(noting that an employee’s burden of proof is “relaxed” when the employer failed to keep time
records); Donovan v. New Floridian Hotel, Inc., 676 F.2d 468 (11th Cir. 1982); Reich v.
Southern New England Tele. Corp., 121 F. 3d 58, 70 (2nd Cir. 1997) (“the burden of inadequate
record keeping [is] on the employer.”).
On-duty time is presumed compensable, unless the employer proves that the meal break
exception found in 29 C.F.R. § 785.19 is applicable. See Kohlheim v. Glynn County, Ga., 915
F.2d 1473, n. 20 (11th Cir. 1990) (noting that § 785.19 constitutes an “exclusion” from
compensation); Naylor v. Securiguard, Inc., 801 F.3d 501, 508 (5th Cir. 2015) (burden of proof
on meal break exemption is on employer); Roy v. County of Lexington, South Carolina, 141 F.3d
533, 540 & 545 (4th Cir. 1998) (same). Finally, the “FLSA is a remedial statute that has been
construed liberally to apply to the furthest reaches consistent with congressional direction.”
Prickett v. DeKalb County, 349 F.3d 1294, 1296 (11th Cir. 2003).
Fact Summary2
Akal is a subcontractor on a Department of Homeland Security contract to oversee the
deportation of persons unlawfully residing in the United States. Akal employees the Plaintiffs as
Air Security Officers (“ASOs”) and assigns 13 ASOs to each deportation mission. The mission
begins – and the ASOs are “on the clock” – when the ASOs arrive at a designated parking lot at
Miami International Airport (“MIA”) for their daily briefing. [SOF ¶ 2]. They are bused onto
airport grounds to the waiting plane – normally an old MD-80. [SOF ¶¶ 2, 20]. The 135
deportees are loaded onto the plane and then flown to a home country – primarily Guatemala,
Honduras, Haiti or the Dominican Republic. On board, the deportees are chained and can only
2
Plaintiffs’ extensive Statement of Undisputed Material Facts is being filed herewith and
is incorporated in toto.
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get up for a designated bathroom break. The deportees, some of whom are serial killers or child
rapists, and many of whom have not been to their home country in decades, routinely defecate,
urinate and vomit in their seats. [SOF ¶ 44]. The deportees are unsanitary and unhygienic
because they have been housed in detention centers, perhaps for an exceptionally long time, prior
to deportation. The plane reeks. The return leg is the last leg of the mission when the plane flies
back to MIA. Sometimes the return leg has deportees on board because the host country refuses
them; other times the return leg is free of deportees. The plane, however, still reeks of feces,
urine and vomit.
Most of the ASOs eat a quick bite or two on the outbound flight(s) with deportees on
board. [SOF ¶ 42]. A mission might take 12 or more hours, and thus the ASOs cannot wait until
the return leg of the mission to eat some food. During empty return legs, the ASOs clean the
plane (not the feces, urine or vomit – that sits there until an environmental team comes aboard
after landing at MIA), pack supplies, complete paperwork, and generally prepare for the next
mission. [SOF ¶ 43].
During return legs with no deportees on board, the ASOs cannot leave the aircraft, stop at
home, pick up laundry, go to the bank, pharmacy, grocery store, or hair salon, get a breath of
fresh air, use a cell phone, surf the internet, send text messages, take a smoking break, stream TV
or movies, speak with a spouse, check on the kids, make a doctor’s appointment, take an exercise
class or go to the gym, visit a church, walk around if the seatbelt sign is on, run personal errands,
order foods or even play cards. [SOF ¶ 35]. The ASOs are free to eat food at any time during the
mission, regardless of whether there are deportees on board and regardless of the length of any
flight. [SOF ¶¶ 17-18]. The duration of the return leg does not impact the ASOs in any way
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(except longer return flights result in less compensation because Akal deducts an hour). [SOF ¶
34].
Upon landing at MIA, the ASOs empty the plane and carry off equipment. [SOF ¶ 40].
The mission ends (and the clock-out time) differs depending on whether the return flight was
international or domestic. [SOF ¶ 3]. If the return leg was an international flight, the mission
ends when the last ASO clears customs. Id. If the return leg was a domestic flight, the mission
ends when the ASOs are dropped off at the outside parking lot. Id. Akal is required to
compensate the ASOs for the duration of the mission – from start time to stop time. [SOF ¶ 4].
At the conclusion of a daily mission, the ASOs sign and submit a blank timesheet. [SOF
¶¶ 25-30]. They never see it again. The mission’s supervisor, normally Manny Pagan, takes the
blank timesheet and adds to it the stop time for the daily mission and then he randomly picks one
hour during the mission and adds in a made-up start and stop time for an unpaid lunch break. Id.
Akal’s official written policy requires ASOs to personally sign out and then sign back in
for all unpaid lunch breaks. [SOF ¶ 24]. The ASOs do not have lunch breaks, and thus the ASOs
never sign out and sign back in for lunch. [SOF ¶ 9]. Akal even admits that its practice is to not
have ASOs personally sign out and then sign back in for unpaid lunch breaks. [SOF ¶ 25]. After
the mission is over, Akal then manipulates the signed time sheets and fakes a sign out and sign in
time for the non-existent lunch break. [SOF ¶¶ 28-30].
Argument
I. Akal’s Timekeeping Practice is Fatal to Any Defense
This case can be decided easily without having to analyze in detail the statute, regulations
and case law because Akal admits it has no records of any alleged meal break and that there are
no regularly scheduled meal breaks. Akal admits that one-hour is randomly deducted after the
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shift is over merely to comply with Akal’s official policy and that the one-hour deduction has no
relationship to any actual meal break. [SOF ¶¶ 28-30]. Even assuming arguendo that Akal’s
written policy complies with the FLSA (and it clearly does not), Akal’s admitted practices are
nothing short of a concession that Akal is violating the FLSA. This is not a case where
employees are given meal breaks but are required to work through those meal breaks, where the
meal breaks taken are shorter than the meal breaks deducted, or where the meal break is
interrupted. Here, there are no meal breaks. Whether the meal breaks comply with the FLSA
first requires a finding that there are meal breaks, which Akal admits it cannot demonstrate.
The facts here are indistinguishable from Donovan v. White Beauty View, Inc., where the
district court found “a calculated scheme . . . to deprive the [] employees” time under the Act by
intentionally underreporting hours worked in the company books. 556 F. Supp. 414, 417 (M.D.
Pa. 1982). The district court categorically refused to attempt to recreate any actual non-
compensable meal break times because the employer had no such records:
While employees were entitled to receive meals during the workday, there was no
record showing to what extent employees took advantage of this entitlement and
how much time was expended while eating. There was testimony that some
employees did not eat meals, especially during busy periods, and that others ate
on the run while working. Because of the absence of records revealing the actual
time spent by employees for meals, it would be pure speculation for me to attempt
to reconstruct the appropriate amount of meal-time credit. When records are
incomplete, the employer cannot complain of the adverse consequences visited
upon him for the failure to maintain precise records as required under the Act.
Id. at 418 (citing Anderson, 328 U.S. at 688); see also Bayles v. Am. Med. Response of Colorado,
Inc., 937 F. Supp. 1477, 1486 (D. Col. 1996) (noting that employees are entitled to full
compensation for meal time deductions when employer had no records of actual meal break
times); Reich v. Petroleum Sales, Inc., 30 F. 3d 654 (6th Cir. 1994) (reversing district court for
not issuing an injunction in an enforcement action when the employer was routinely violating the
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recordkeeping requirements of the Act by artificially reducing the number of hours worked on
time records); Chao v. Self Pride, Inc., 2005 WL 1400740, *6 (D. MD. 2005) (manipulation of
time records to dock compensation is a per se “face of the record” violation of the Act).
Here, Akal keeps records of what shifts included an arbitrary one-hour deduction, but not
the start and stop time of any hypothetical meal break. The ASOs have universally testified that
there are no meal breaks and Akal’s supervisor has conceded there are no scheduled, regular
meal breaks. Accordingly, the Plaintiffs are entitled to judgment, leaving only simple math to
determine the amount owed.
II. The ASOs Return Flight to Miami is Compensable Travel Time
The ASOs are entitled to summary judgment as a matter of law because return flights to
MIA, which include the hypothetical but non-existent one-hour meal break, constitute “travel
that is all in a day’s work.” The regulation, conveniently entitled “Travel that is all in a day’s
work,” states: “Time spent by an employee in travel as part of his principal activity, such as
travel from job site to job site during the workday, must be counted as hours worked.” 29 C.F.R.
§ 785.38; see also Burton v. Hillsborough County, Fla., 181 Fed. Appx. 829 (11th Cir. 2006)
(applying § 738.38 to find in favor of employees); Cantu v. Milberger Landscaping, Inc., 12 F.
Supp. 3d 918, 922-23 (W.D. Tex. 2014) (applying § 785.38 to grant employees’ motion for
summary judgment where landscapers travelled between job sites).
In addition to “travel all in a day’s work” being compensable under the FLSA, the DOL
regulations make clear that “non-productive hours” are also compensable under the Act:
Under the Act an employee must be compensated for all hours worked. As a
general rule the term “hours worked” will include: (a) All time during which an
employee is required to be on duty or to be on the employer’s premises or at a
prescribed workplace and (b) all time during which an employee is suffered or
permitted to work whether or not he is required to do so. Thus, working time is
not limited to the hours spent in active productive labor, but includes time given
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by the employee to the employer even though part of the time may be spent in
idleness.
29 C.F.R. § 778.223. Here, the ASOs are required to be on duty and are required to be on the
employer’s premises or at a prescribed workplace (in this case, an aircraft) for the duration of the
mission, including during the time that the hypothetical but non-existent meal break occurs. This
meets the DOL’s definition of “hours worked,” even if there are no deportees on board.
Sections 778.223 and 785.38 are consistent with the Supreme Court’s pronouncement
that “an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for
something to happen.” Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944) (finding “inactive”
time to be compensable under the FLSA). Armour was applied in the meal time context in F.W.
Stock & Sons v. Thompson, 194 F. 2d 493, 496 (6th Cir. 1952) where the employees “did not
have a free lunch period which they could utilize in their own interest and do as they pleased…”
“Time spent predominantly for the employer’s benefit during a period, although designated as a
lunch period or under any other designation, nevertheless constitutes working time compensable
under the provisions of the FLSA.” Id. (citing the district court which held that fancy
“timekeeping” and “bookkeeping practice” – such as taking out a meal break deduction while
raising the hourly rate – “may not be permitted to defeat the spirit and intent of the legislation.”);
see also Banks v. Mercy Vila Care Center, 407 N.W. 2d 793, 797 (Neb. 1987) (“No matter how
much time is designated as a meal period, if any an employee is not free to follow pursuits of a
purely private nature or the time is spent predominately for the employer’s benefit, the
designated time is not a bona fide meal period [under the FLSA].”).
Simply put, the ASOs were not travelling to be engaged; they were engaged to travel. Cf
Culkin v. Glenn L. Martin Neb. Co., 97 F. Supp. 661, 672-73 (D. Neb. 1951) (finding for
employees who “were not waiting to be engaged; they had been engaged to wait.”). Akal’s
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defense can be summed up as: “the ASOs are not entitled to any compensation during any
portion of the return flight because there are no deportees on board and thus nothing for them to
do.” This is a gross misunderstanding of the FLSA and what it means to work.
Akal admits that an ASO’s shift begins when he or she arrives at the MIA parking lot for
a pre-flight briefing by the supervisor. If the return flight to MIA is international, the shift ends
when the last ASO clears customs. If the return flight to MIA is domestic, the shift ends when
the ASOs are dropped off by bus at the MIA parking lot. This constitutes the entire mission and
ASOs are compensated for the entire mission. During the return flight to MIA, the ASOs are
still performing services for Akal, are required to stay in uniform even though the ASOs bring
with them a set of civilian clothes in the event of an unexpected layover, and are still required to
comply with all of Akal’s policies and procedures. Upon landing at MIA, the ASOs have
services to perform for Akal, including removing and organizing tools of the trade. Even if an
ASO slept for every single minute of the return flight to MIA (which is not the case), it is still
compensable time within the meaning of the FLSA because it is “travel that is all in a day’s
work.”
III. The Meal Period Exception is Inapplicable Because the ASOs Are Not Completely
Relieved from Duty
Akal is not entitled to take advantage of the meal break exception because there are no
bona-fide meal breaks for the purpose of eating a regular meal. The regulation states:
(a) 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. The employee must be completely relieved from duty for the
purposes of eating regular meals. [] 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.
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(b) Where no permission to leave premises. 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.
See 29 C.F.R. § 785.19. In Kohlheim, the Eleventh Circuit expressly adopted § 785.19 as the
applicable law. 915 F.2d at 1477, n. 20.
In both subsections § 785.19 requires that the employee be “completely relieved from
duty.” The law in this circuit is clear: “In order to be considered a bona fide meal period,
however, the regulations require complete relief from duty.” Id.; see also Brennan v. Elmer’s
Disposal Service, Inc., 510 F.2d 84, 88 (9th Cir. 1975) (“An employee cannot be docked for
lunch breaks during which he is required to continue with any duties related to his work.”).
Importantly, it is not enough that the employee be “completely relieved from duty.” The
employee must be completely relieved from duty “for the purpose of eating a regularly scheduled
meal.” Id. 3
Importantly, the regulation expressly requires a meal break to be “bona fide” to be non-
compensable. Bona fide means “made, done, presented, etc., in good faith; without deception or
fraud; authentic; true.” See www.dictionary.com. Here, Akal’s supervisor admits that the one-
hour deduction is made to comply with Akal’s written policy, but that it bears no relation to an
actual meal break. There is nothing bona fide about Akal’s employment practices.
3
Kohlheim’s analysis and holding was affirmed four years later in Avery v. City of
Talladega, Ala., 24 F.3d 1337 (11th Cir. 1994), when the Eleventh Circuit noted that § 785.19 is
slightly modified for police officers whose employer takes advantage of 29 C.F.R. § 553.223(b).
Section 553.223(b) requires application of a “predominant benefit test” not applicable here. In
Chao v. Tyson Foods, Inc., 568 F. Supp. 2d 1300, n.3, n.4 (N.D. Ala. 2008), the district court
conducted a detailed analysis and confirmed that the “predominant benefit test” in Avery only
applies to police officers pursuant to § 553.223(b) and that Kohlheim remains the applicable law
for all other employers seeking an exception pursuant to § 785.19. Even assuming the
predominant benefit test applies, the outcome remains the same.
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Analogous case law looks at the limitations placed on the employee during the so-called
meal break to determine whether the employee is completely relieved of duty. In Tyson Foods, a
bona fide meal break was found by the district court where the employees were “free to leave the
plant to perform personal errands, eat at local restaurants, or go home.” 568 F. Supp. 2d at 1310.
In Avery, a bona fide meal break was found by the Eleventh Circuit where the employees “may
return home, stop at the bank, pick up their dry cleaning, or run other personal errands.” 24 F. 3d
at 1347. In Lee v. Coahoma County, Miss., 937 F.2d 220, 225 (5th Cir. 1991), the Fifth Circuit
found a meal period under § 785.19 where the employees “were allowed to go where they
pleased during the break.” In Henson v. Pulaski County Sheriff Dept., 6 F.3d 531, 536 (8th Cir.
1993), the Eighth Circuit found a bona fide meal break where police officers were free to
“change into civilian clothes” and were “allowed to go wherever they please, even outside of
their [assigned] patrol area.” “Most importantly, the officers may and do tend to personal
errands.” Id. In Lamon v. City of Shawnees, Kansas, 972 F. 2d 1145, 1156 (10th Cir. 1992), the
Tenth Circuit found in favor of the employees because of “the number and range of restrictions
placed on Plaintiffs” during their so-called meal break. The Tenth Circuit was particularly
concerned that the employees “may not conduct personal business errands during” the meal
break. Id. Finally, the Sixth Circuit found a bona fide meal period where the employees:
were free, during their breaks, to eat, drink, socialize with other [] employees, use
their cell phones, utilize the internet, watch the TVs installed in the cafeteria and
various break rooms, read, use the company provided computers in the cafeteria,
[and] play cards and other games[.]
… The guards therefore spent meal periods in either a large cafeteria, where free
food and drinks were available, or one of the smaller break rooms—all of which
could be crowded and noisy. A smoking area was also available, and guards could
walk along an outdoor path surrounding the casino.
Ruffin v. Motorcity Casino, 775 F.3d 807, 809-10 (6th Cir. 2015).
www.kymplaw.com
Here, the ASOs are free to do nothing that is consistent with a bona fide meal break.
They cannot leave the aircraft, stop at home, pick up or drop off laundry, go the bank, go to the
pharmacy, go to the grocery store, get a haircut or visit a bueaty salaon, get a breath of fresh air,
use a cell phone, surf the internet, send text messages, take a smoking break, stream television or
movies, speak with your spouse, check on your kids, make a doctor’s appointment, take an
exercise class, go to the gym, visit a church, walk around the aircraft or use the bathroom (if the
fasten seatbelt light is on), run personal errands, order food or even play cards. [SOF ¶ 36]. As
Akal concedes, the ASOs “are held captive on the plane” and are limited “to eating whatever
food they brought on board in advance.” [SOF ¶¶ 36-37].
Kohlheim and § 785.19 require the break to exist “for the purpose of eating a regularly
scheduled meal.” Akal concedes the so-called meal period is “not scheduled at all.” [SOF ¶¶
10-13]. The ASOs are not told in advance of the mission, or even in advance of the return leg of
a mission, whether there will be a meal period. Id. In fact, the nature of the job makes it
impossible for Akal or the ASOs to know whether there will be a meal period during any return
leg because no one knows how long the return leg will last or whether any deportees will be on
board. Id. Akal’s supervisor does not even use the actual flight time to determine whether the
flight lasted 90 minutes more; instead, the supervisor asks the pilot, in advance, what the
expected flight time will be.
Amazingly, the decision whether any mission “will have a one-hour meal break
deduction” is made by the supervisor “at the conclusion of mission.” Id. at ¶ 16. Akal concedes
that after a daily mission, the mission’s supervisor then decides whether the ASOs had a meal
period on a flight that already ended. This cannot, under any reasonable interpretation of the
FLSA, be a bona fide meal break “for the purpose of eating a regularly scheduled meal.”
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Akal’s supervisor even testified that an “ASO works on a plane” “like an office worker
who works at a desk or a factory worker who works at a machine.” [SOF ¶ 5]. This is precisely
the example that the DOL says is not a bona fide meal break: “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.” § 785.19(a).
Finally, the undisputed testimony is that any food consumed on the job is consumed on
an old, smelly, cramped, unsanitary airplane that reeks of feces, urine and vomit. Even in the
light most favorable to Akal, taking a few minutes to eat a cold meal at the end of a 15 hour shift
next to a seat covered in a deportee’s feces is not a bona fide meal break within the meaning of
the FLSA.
Conclusion
Akal is routinely deducting one arbitrary hour of compensable time from each ASO and
justifies it after the fact by calling it a “meal break.” Akal’s conduct violates the letter and spirit
of the FLSA and its implementing regulations. Accordingly, Plaintiffs are entitled to summary
judgment on liability as a matter of law.
Respectfully submitted,
_/s/ Matthew Sarelson

Florida Bar 888281
KAPLAN YOUNG & MOLL PARRÓN
600 Brickell Avenue, Suite 1715
Miami, Florida 33131
Phone (305) 330-6090
msarelson@kymplaw.com
Counsel for the Plaintiffs
www.kymplaw.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 27, 2017, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF. I also certify that the forgoing document
is being served this day on all counsel of record or pro se parties identified on the attached
Service List in the manner specified, either via transmission of Notices of Electronic Filing
generated by CM/ECF or in some other authorized manner for those counsel or parties who are
not authorized to receive electronically Notices of Electronic Filing.
/s/ Matthew Seth Sarelson

Matthew Seth Sarelson, Esq.
Service List
Case No.: 1:16-cv-23170-FAM
Matthew Seth Sarelson, Esq.

Florida Bar 888281
KAPLAN YOUNG & MOLL PARRÓN
Attorneys for Plaintiff/Class
600 Brickell Avenue, Suite 1715
Phone (305) 330-6090
msarelson@kymplaw.com
Jenna Rinehart Rassif, Esq. 

Florida Bar No. 56855
jenna.rassif@jacksonlewis.com
Derek H. Sparks, Esq.
Florida Bar No. 11434
derek.sparks@jacksonlewis.com
JACKSON LEWIS P.C.
One Biscayne Tower, Suite 3500
Two South Biscayne Boulevard
Telephone: (305) 577-7651
Facsimile: (305) 373-4466
Attorneys for Defendant
www.kymplaw.com

Plaintiffs' Motion For Summary Judgment On Liability Granted Re Unpaid Meal Breaks

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Case 1:16-cv-23170-FAM Document 119 Entered on FLSD Docket 03/27/2017 Page 1 of 14

UNITED STATES DISTRICT COURT

Case No.: 1:16-cv-23170-FAM

ELLIOT GELBER, &

AKAL SECURITY, INC.,

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON LIABILITY

Judgment on Liability. Plaintiffs are entitled to a judgment on liability as a matter of law

losing one-hour of compensable time on over 50% of their daily missions.

record keeping [is] on the employer.”).

Akal is a subcontractor on a Department of Homeland Security contract to oversee the

urine and vomit.

mission. [SOF ¶ 43].

time for the non-existent lunch break. [SOF ¶¶ 28-30].

I. Akal’s Timekeeping Practice is Fatal to Any Defense

determine the amount owed.

II. The ASOs Return Flight to Miami is Compensable Travel Time

(applying § 738.38 to find in favor of employees); Cantu v. Milberger Landscaping, Inc., 12 F.

summary judgment where landscapers travelled between job sites).

Relieved from Duty

(b) Where no permission to leave premises. It is not necessary that an employee

applicable law. 915 F.2d at 1477, n. 20.

food they brought on board in advance.” [SOF ¶¶ 36-37].

expected flight time will be.

working while eating.” § 785.19(a).

judgment on liability as a matter of law.

_/s/ Matthew Sarelson

/s/ Matthew Seth Sarelson

Matthew Seth Sarelson, Esq.

Jenna Rinehart Rassif, Esq.

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Jenna Rinehart Rassif, Esq. 