IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 01-50232
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MARTIN ALVAREZ; PETE ALVAREZ;
SERGIO ARMENDARIZ; ANDREW BROOKS;
TAYLOR BARKLEY; GARY CADD; HECTOR
JESUS CANO; PEDRO A. CHAVEZ;
BRUCE A. CRUMP; MARIO D’AGOSTINO;
ROBERTO FLORES; RAUL GARCIA-FLORES;
DAVID GONZALEZ; GREG HERNANDEZ;
MARIO HERNANDEZ; RICHARD HOLGUIN;
MARK KLINE; LORENZO MARQUEZ;
ANTONIO MURO, JR.; MICHAEL NELIGH;
CARLOS A. PIEDRA; ERIC SODEMANN;
MICHAEL A. STUBBLEFIELD; DANIEL TARIN;
JOSEPH A. TELLEZ; MIGUEL A. TORRES;
DAVE VALERO
All individually and on behalf of all
other employees similarly situated,
Plaintiffs - Appellants,
versus
CITY OF EL PASO,
Defendant - Appellee.
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Appeal from the United States District Court
for the Western District of Texas
No. EP-00-CV-103-H
February 14, 2002
Before GARWOOD, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:1
Martin Alvarez and twenty-seven other firefighters brought
1
Pursuant to 5th Cir. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
suit against the City of El Paso based on the Fair Labor Standards
Act (FLSA). They claimed that the City had violated the FLSA, 29
U.S.C. § 207(a)(1), by refusing to pay compensation for their lunch
hour. They argued that, because the City placed so many
restrictions on the firefighters’ activities during lunch, it was
impossible to derive any personal benefits from the lunch hour.
Thus, because the lunch hour did not qualify as a bona fide meal
period under the FLSA, they were entitled to be compensated for the
hour. The district court granted the City’s motion for summary
judgment. Alvarez now appeals.
We have studied the briefs, heard the argument of the parties,
and considered the issues raised in this appeal. It is now clear
to us that the finding and conclusions of the district court are
not reversible. In deciding whether a lunch hour qualifies as a
bona fide meal period, the courts apply a “predominant benefit
test.” See Bernard v. IBP, Inc. of Nebraska, 154 F.3d 259, 264
(5th Cir. 1998). “The critical question [under this test] is
whether the meal period is used predominantly or primarily for the
benefit of the employer or for the benefit of the employee.” Id.
at 264-65. In resolving this question, we must decide whether the
employee can use the time during lunch for his or her own purposes.
Id. at 266. The restrictions placed here on the employees’ dress
and use of city-owned automobiles were more in the nature of
inconveniences than restrictions on the free use of the time at
2
issue. The district court therefore did not err when it
determined, as a matter of law, that the firefighters could use the
lunch hour time primarily for their own personal benefit.
Accordingly, the judgment of the district court is
AFFIRMED.
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