Q: Our district schedules its police officers’ shifts to include an unpaid 30-minute lunch break. One of our officers heard that police are considered “on-duty” whenever they are in uniform and requested that we compensate her during her break. Do we have to pay our officers during their lunch breaks?
A: Most likely no, provided that the officers’ lunch break is predominantly for their own benefit.
The longstanding rule of law is that a police officer is on-duty 24 hours a day. Moore v. State, 562 S.W.2d 484, 486 (Tex. Crim. App. 1978). This rule is advantageous for public security because officers’ work schedules do not limit their duty to discharge police authority in the presence of criminal activity. Id. The rule creates confusion, however, when determining an officer’s compensable work and overtime.
Under the Fair Labor Standards Act (FLSA) and Texas Local Government Code, compensable work hours generally include all time that: (1) an officer is scheduled to work at an employer’s establishment or prescribed workplace; and (2) an officer is otherwise required or permitted to work for the department (i.e., during emergencies, in the presence of criminal activity, etc.). 29 CFR 553.221(b)-(c); Tex. Local Gov’t § 142.0013(h). The FLSA, however, excludes time a person might consider worktime under these rules from its definition of compensable hours. Normal travel time to and from scheduled shifts, for example, does not amount to compensable hours even when a department requests that an officer report to locations other than the department’s premises. See 29 CFR 553.221(e). This is true regardless whether an officer is wearing his or her uniform and driving a patrol car. See 29 CFR 553.221(f).
Given these rules, Texas judges hold that police officers do not accrue compensable time solely because they are in uniform during lunch breaks. Courts have prescribed the following two-factor test to decide whether officers earn compensable time: (1) whether the officers spend time predominantly for their own or their employer’s benefit; and (2) whether the break is of sufficient duration and taken under conditions that are available to the officers for their own use and purposes disassociated from worktime. Because police officers are not eating their meals while patrolling, their meal-time break is not predominately spent for the benefit of their employer and thus not compensable. University Park, 766 S.W.2d 531, 532 (Tex. Ct. App. 1989).
In sum, no state or federal law supports the proposition that police officers accrue compensable time during meal breaks simply because they are in uniform. For additional information regarding compensable time under the FLSA, please contact your local school attorney.