IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 01-50232 _____________________

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.

_________________________________________________________________

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1 Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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,

(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,

(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.”

. In resolving this question, we must decide whether the

employee can use the time during lunch for his or her own purposes.

. 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.

3