Tymeco Jones v. SCO Silver Care Operations, L.L.C. d/b/a Alaris Health at Cherry Hill

Plaintiffs, Tymeco Jones, Iesha Bullock, and Teairra Pizzarro, are certified nursing assistants who bring this action against their employer, SCO Silver Care Operations (“Silver Care”) for violations of the Fair Labor Standards Act (“FLSA”) and related New Jersey state wage and hour laws. The plaintiffs claim that Silver Care underpaid them for overtime in two ways. First, Silver Care failed to include certain hourly wage differentials in the calculation of the

3

plaintiffs’ regular rate of pay, resulting in illegally low

overtime rates. Second, Silver Care deducted plaintiffs’ halfhour

meal breaks from their total hours worked, even though

they often worked through those breaks. A year after the

plaintiffs filed their lawsuit, but before any discovery took

place, Silver Care moved to dismiss or to stay the proceedings

pending arbitration, citing the arbitration clause in the

governing collective bargaining agreement (“CBA”). The

District Court denied the motion to dismiss or to stay pending

arbitration. Defendant Silver Care appeals, contending that

both overtime claims must first be submitted to arbitration to

resolve disputed interpretation of the CBA, including the

definition of the wage differentials and policies concerning

the meal breaks. For the reasons set out below, we will

affirm the decision of the District Court.

I. Background

The plaintiffs are employed at an assisted living

facility, which was bought by Silver Care in 2007. The terms

of their employment are governed by a CBA, negotiated by

the nurses’ union at the time of the purchase in 2007. This

agreement lays out, among other things, wages, raises, breaks,

and a grievance procedure that directs all disputes and

complaints arising under the CBA to arbitration. Together,

the three plaintiffs bring underpayment of overtime claims on

their own behalf and on behalf of a class of nursing assistants

who have worked at the nursing home at any time between

December 31, 2010 and December 31, 2013. Their

allegations are twofold: First, though plaintiffs are paid wage

differentials, an additional $1.25 an hour to $3.00 an hour to

account for shift premiums and raises, these differentials are

not included in their regular rate of pay when overtime pay is

4

calculated. Second, plaintiffs’ 30-minute meal breaks are

automatically deducted from total time worked even though

they often need to work through those breaks during night

shifts. Briefly summarized below are the facts relevant to

each of these two claims, followed by the procedural history.

A. Exclusion of Wage Differentials in Overtime

Calculation

Nursing assistants are paid a base rate of $10 to $14 an

hour. In addition to these base rates, they may also be paid

some or all three types of differentials: (1) “shift

differentials”—an additional $2.50 an hour or $3.00 an hour,

depending on the time and day of the shift; (2) “raise

differentials”—an additional $1.25 an hour to those who

received a certain type of raise; and (3) “frills differentials”—

an additional $1.00 an hour or $1.60 an hour for nursing

assistants who elected to forgo certain benefits. Whereas

nursing assistants are compensated for overtime at one and a

half times their base rate plus frills differential, plaintiffs here

allege, and have submitted paystubs to demonstrate, that the

shift differentials and raise differentials are not included.

Consequently, the plaintiffs contend that they are

undercompensated for overtime, which should be at one and a

half times their all-in hourly rate during the regular work

period.

B. Uncompensated 30-Minute Meal Breaks

Under the CBA, nursing assistants who are scheduled

for eight-hour shifts are entitled to two paid 15-minute breaks

and one unpaid 30-minute meal break per shift. The plaintiffs

allege that nursing assistants who work during the night shifts

5

“rarely, if ever” took an uninterrupted meal break because

those shifts are chronically understaffed.1 For example,

whereas each nursing assistant is typically responsible for

twelve to seventeen patients during the day and evening

shifts, a nursing assistant on a night shift would be

responsible for around thirty patients. In fact, the plaintiffs

allege that, due to the staff shortage, the night shift

supervisors do not schedule meal breaks for the night shift

nursing assistants, and that when they do eat, they do so at the

nurse’s station, rather than in the break room, in order to hear

the call bell alerting them to patients requiring care. Despite

the frequent interruptions and restrictions, the plaintiffs allege

that the 30-minute meal breaks are automatically deducted

from their total hours worked. Consequently, the plaintiffs

allege that they are not being paid for all the hours worked,

including overtime for those weeks in which they worked

more than forty hours.

C. Procedural History

The plaintiffs filed suit in December 2013. Silver Care

moved to dismiss the complaint, which motion was denied

when the plaintiffs filed an amended complaint. Silver Care

subsequently moved to dismiss the amended complaint,

which was granted as to the plaintiffs’ claims seeking

injunctive relief, but denied as to the claims seeking monetary

damages. Thereafter, the plaintiffs moved to conditionally

certify their suit as a collective action. Silver Care opposed

the motion for conditional certification and moved to dismiss

or to stay the proceedings pending arbitration. The District

Court granted conditional certification and denied Silver

1 A 116.

6

Care’s motion to dismiss or stay proceedings pending

arbitration, holding that the plaintiffs’ FLSA claims do not

arise out of or implicate the CBA. Silver Care subsequently

moved for reconsideration, which was also denied. Silver

Care appealed.2

II. Discussion

The main issue on appeal is the applicability of the

arbitration clause in the CBA to each of the plaintiffs’ FLSA

overtime claims. We begin by examining the relevant legal

framework before turning to the plaintiffs’ two claims.

A. Legal Framework

Whether and when a plaintiff’s FLSA claims can be

covered by an arbitration clause in a CBA is subject to a twoprong

test. A court may compel arbitration of a plaintiff’s



2 The District Court had jurisdiction under 28 U.S.C. § 1331

to adjudicate the FLSA claims and under 28 U.S.C. § 1367 to

consider the associated state law claims. The District Court’s

order denying Silver Care’s motion to dismiss or to stay

pending arbitration under 9 U.S.C. § 3 is immediately

appealable under 9 U.S.C. § 16(a)(1). Arthur Anderson LLP

v. Carlisle, 556 U.S. 624, 628 (2009). Our review of the

arbitrability of the plaintiffs’ claims is plenary. See Edwards

v. HOVENSA, LLC, 497 F.3d 355, 362-63 (3d Cir. 2007)

(citing Harris v. Green Tree Fin. Corp., 183 F.3d 173, 176

(3d Cir. 1999)). We review the District Court’s denial of the

motion for reconsideration for abuse of discretion.

Chesapeake Appalachia, LLC v. Scout Petroleum, LLC, 809

F.3d 746, 753 (3d Cir. 2016).



7



federal statutory claim when (1) the arbitration provision

clearly and unmistakably waives the employee’s ability to

vindicate his or her federal statutory right in court; and (2) the

federal statute does not exclude arbitration as an appropriate

forum.3 Even if no clear or unmistakable waiver exists,

however, we have held that arbitration may still be compelled

if the plaintiff’s FLSA claim “depends on the disputed

interpretation of a CBA provision,” which dispute must “first

go to arbitration—through the representative union—before

[the employee may] vindicat[e] his or her rights in federal

court under the FLSA.”4 We established this narrow rule to

prevent a plaintiff from circumventing applicable statutes of

limitations and contractually binding grievance procedures set

out in a CBA. Tellingly, we have applied it to dismiss a

plaintiff’s FLSA claim in only one case, Vadino v. A. Valey

Engineers.5



In Vadino, the plaintiff-employee brought two claims.6

First, the plaintiff alleged that the employer breached the

CBA by paying him less than the wages due to a journeyman

under the CBA.7 Second, he alleged that the employer

breached the overtime provision of the FLSA because he was

not paid for overtime hours at one and a half times the

journeyman rate to which he claimed that he was entitled

under the CBA.8 In short, both claims centered on his



3 14 Penn Plaza v. Pyett, 556 U.S. 247, 260 (2009).

4 Bell v. Se. Pa. Transp. Auth., 733 F.3d 490, 494 (3d Cir.

2013).

5 903 F.2d 253 (3d Cir. 1990).

6 Id. at 255.

7 Id. at 257.

8 Id.



8



argument that the CBA promised him higher wages than what

he actually received. Consequently, because his FLSA claim

was “inevitably intertwined with the interpretation or

application of [the] collective bargaining agreement,”9 we

held that he must first resolve his contractual dispute

according to the internal grievance procedure set out in the

CBA.10 He could vindicate his federal statutory right in court

only after resolution of his CBA claim.11



By contrast, we held more recently in Bell v.

Southeastern Pennsylvania Transportation Authority that the

plaintiffs were not required to resolve any contractual

disputes through arbitration before bringing their FLSA claim

in federal court because their FLSA claim was completely

independent of any interpretation of the CBA.12 In that case,

the plaintiffs, who worked as bus drivers and trolley

operators, claimed that they should have been compensated

for time spent performing vehicle inspections before the start

of their daily trips.13 The defendant argued that this FLSA

claim depended on “whether the provisions of the CBA

governing compensation for reporting time prior to the start

of daily schedules include payment for pre-trip inspections.”14

That argument failed, however, because the employees did

not claim that “they are entitled to additional payment under a

CBA.”15 Rather, “resolution of the FLSA claim requires a

9 Bell, 733 F.3d at 494 (describing Vadino).

10 Vadino, 903 F.2d at 266.

11 Id.

12 Bell, 733 F.3d at 491.

13 Id.

14 Id. at 495 (internal quotation marks omitted).

15 Id.

9

factual determination of the amount of time Operators are

required to work prior to their scheduled start, and a legal

determination regarding whether this time is (1) compensable

and (2) subject to the overtime provisions of the FLSA.”16

In summary, to the extent that an employee may be

compelled to arbitrate his or her FLSA claims at all, the

arbitration clause in the CBA must clearly and unmistakably

state so. However, even where an arbitration clause does not

contain a clear and unmistakable waiver of a plaintiff’s right

to a judicial forum, a plaintiff may nonetheless be compelled

to arbitrate disputes over interpretations of the CBA, if the

FLSA claims depend on such contractual disputes.

Here, Silver Care does not dispute that the arbitration

provision lacks a clear and unmistakable waiver of the

employees’ right to vindicate their FLSA claims in federal

court.17 Instead, Silver Care argues that this case must be

stayed pending arbitration because both of the plaintiffs’

FLSA claims depend on disputed interpretations of the CBA.

For the following reasons, we disagree.

16 Id.

17 In fact, the arbitration clause defines a grievance “as a

dispute or complaint arising between the Union and the

Employer under this CBA or the interpretation, application,

performance or any alleged breach thereof.” A 189. It does

explicitly provide that “[a]ll claims that an employee has been

discriminated against . . . in violation of applicable federal,

state or local law shall be subject to the grievance and

arbitration procedure as the sole and exclusive remedy for

violations.” A 191. But there is no similar provision for

FLSA disputes.

10

B. Miscalculation of Overtime Rate Claim

Silver Care argues that the plaintiffs’ FLSA claim

alleging miscalculation of the overtime rate rests upon a

dispute over an implicit term of the CBA regarding whether

the differentials already include a payment for overtime.

Silver Care claims that during the collective bargaining

process, when it negotiated to grandfather in some of the

differentials, it also came to an agreement with the nurses’

union that the additional differential amounts would already

include overtime.18 For example, Silver Care asserts that

what appears to be a “$3.00 per hour weekend differential is a

gross amount comprised of the $2.00 per hour differential and

an extra $1.00 per hour in overtime premium . . . regardless of

whether [the weekend shift] was worked in excess of 40

hours per week.”19 This, Silver Care posits, constitutes a

dispute over an implicit term of the CBA that must first be

sent to arbitration before a court can decide whether the

plaintiffs have a claim under the FLSA.20

Silver Care’s argument fails because the plaintiffs’

overtime claim is governed by the FLSA. Unlike the dissent,

we believe that the statute requires us to bypass how the CBA

breaks down the pay differentials, and look only to whether

these pay differentials fit into the statutory definition of

remuneration that must be included in the calculation of an

employee’s regular hourly rate of pay.

18 Appellant’s Br. at 44.

19 Id. at 41.

20 Id. at 41-42.

11

The FLSA requires qualifying employers to pay “at a

rate not less than one and one-half times the regular rate” to

employees for hours worked in excess of forty hours a

week.21 The regular rate of pay is defined as “all

remuneration for employment paid to, or on behalf of, the

employee,” and the statute explicitly sets out a limited list of

eight exceptions to this rule of “all remuneration.”22 We have

held that these statutory exclusions are exclusive. “[A]ll

remuneration for employment paid which does not fall within

one of these seven exclusionary clauses must be added into

the total compensation received by the employee before his

regular hourly rate of pay is [to be] determined.”23

Furthermore, these statutory exclusions “are narrowly

construed, and the employer bears the burden of establishing

[that] an exemption [applies].”24

In other words, whether the wage differentials should

be included in the regular rate of pay depends not on any

labels assigned to them by the CBA, but on whether they fit

into one of the statutory exclusions. An employee’s “regular

rate is a readily definable mathematical calculation that is

explicitly controlled by the FLSA.”25 As the Supreme Court

puts it, the regular rate “is not an arbitrary label chosen by the

21 29 U.S.C. § 207(a)(1).

22 29 U.S.C. § 207(e).

23 Smiley v. E.I. Dupont De Nemours & Co., 839 F.3d 325,

330 (3d Cir. 2016) (quoting 29 C.F.R. § 778.200(c)).

24 Id. (quoting Minizza v. Stone Container Corp. Corrugated

Container Div. E. Plant, 842 F.2d 1456, 1459 (3d Cir.

1988) (internal citations omitted)).

25 Id. (citing Walling v. Youngerman-Reynolds Hardwood

Co., 325 U.S. 419, 424-45 (1945)).

12

parties; it is an actual fact.”26 Once amount of wages actually

paid is known, “the determination of the regular rate becomes

a matter of mathematical computation, the result of which is

unaffected by any designation of a contrary ‘regular rate’ in

the wage contracts.”27 Therefore, whether the CBA

designates $2.00 of the $3.00 shift premium for working on

Sunday as “regular pay” and $1.00 as “overtime” is

completely irrelevant to a court’s analysis of the proper

overtime payment owed to the plaintiffs. A court determines

the regular hourly rate of pay “by dividing [the employee’s]

total remuneration for employment (except statutory

exclusions) in any workweek by the total number of hours

actually worked by him in that workweek for which such

compensation was paid.”28 This calculation can be done

simply by looking at a paystub.

In conclusion, the plaintiffs’ miscalculation of

overtime rate claim does not depend on any disputed term of

the CBA, and, therefore, need not be sent to arbitration.

C. Lack of Mealtime Compensation Claim

Silver Care argues that the plaintiffs’ second FLSA

claim—that their meal breaks should be credited towards

hours worked—depends on disputed practices under the

CBA, which must first be resolved by an arbitrator.29

26 Walling, 325 U.S. at 424 (emphasis added).

27 Id. at 425.

28 29 C.F.R. § 778.109.

29 Contrary to the dissent’s characterization, the plaintiffs

clearly state that their “claim for overtime wages due to

unlawful meal break deductions is based only on their

13

Because we find that the alleged disputed practices

enumerated by Silver Care are simply factual disputes, we

hold that arbitration of the plaintiffs’ second claim is also not

necessary.

The FLSA itself does not define what are compensable

work hours. Instead, the Wage and the Hour Division of the

Department of Labor issued a number of regulations

providing employers and employees alike guidance on how it

would implement and enforce the law. One such regulation

provides that employers need not compensate employees for

bona fide meal periods because those are not considered to be

compensable worktime.30 The regulation defines a bona fide

meal period as rest periods during which “[t]he employee

must be completely relieved from duty for the purpose of

eating regular meals,” but “[t]he employee is not relieved if

he is required to perform any duties, whether active or

inactive, while eating.”31

As the dissent alludes, this regulation does not have

the force of law, however, and merely “constitute[s] a body of

experience and informed judgment to which courts and

statutory rights under the FLSA.” Appellees’ Br. at 17. They

emphasized that they ”do not claim that [Silver Care]

breached a contractual right provided by the CBA but instead

violated the FLSA and DOL regulations, which require

employers to pay employees 1.5 times their regular rates for

all hours worked in excess of 40 hours including meal breaks

that are not bona fide.” Id. (citing 29 U.S.C. § 207; 29 C.F.R.

§ 785.18) (emphasis in original).

30 29 C.F.R. § 785.19(a).

31 Id.

14

litigants may properly resort for guidance.”32 And we were

so guided by it in Babcock v. Butler County, in which case we

recognized that the FLSA does require employees to be

compensated for meal periods if they are “primarily engaged

in work-related duties during” those times, adopting the socalled

predominant benefit test.33 We explained that the

“predominant benefit test is necessarily a fact-intensive

inquiry,” where the “essential consideration . . . is whether the

employees are in fact relieved from work for the purpose of

eating a regularly scheduled meal.”34 Furthermore, one of the

factors we look to, as part of this predominant benefit test, is

the characterization of the mealtime break in the CBA.35 In

short, Silver Care is subject to a statutory obligation to

compensate the plaintiffs for time spent during meal periods

if the plaintiffs, as they allege, are primarily engaged in workrelated

duties during these breaks.

Silver Care does not argue that the plaintiffs’ mealtime

compensation claim is a contractual dispute, as the dissent

posits. It recognizes that the plaintiffs’ mealtime

compensation claim is based on the FLSA and how

compensable work time is defined under that statute. Instead,

it relies on our consideration of the characterization of the

meal break in the CBA in Babcock to support its contention

that “[i]n order to determine . . . to whom the benefit of the

meal break inures, there must be an interpretation of the

32 Babcock v. Butler Cty., 806 F.3d 153, 157 n.7 (3d Cir.

2015) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140

(1944)).

33 Id. at 156.

34 Id. at 157.

35 Id. at 158.

15

CBA.”36 Among the disputed “interpretations” that Silver

Care seeks to arbitrate are: (1) the actual length of the meal

breaks—Silver Care alleges that different sections within the

nursing home sometimes combine the unpaid meal break with

the paid breaks, extending meal breaks to 45 minutes or an

hour, for which only 30 minutes are unpaid;37 (2) “the

practices, customs and usages of the parties with respect to

what happens if an employee allegedly is interrupted during a

meal break”38—whether the interrupted time is normally

“considered part of the paid portion of the break or the unpaid

portion of the break?;”39 and (3) practices under the CBA

regarding the types of restrictions, if any, placed upon the

employees during their meal breaks, “what are considered

interruptions of the meal breaks, and how interruptions are

handled during the meal breaks.”40

All of these so-called disputed “interpretations” of the

CBA, however, are factual questions—length of meal breaks,

types of interruptions, how they were handled, and whether

the plaintiffs ever received compensation due to these

interruptions.41 Silver Care cannot rely on Babcock to

36 Appellant’s Br. at 48.

37 Id.

38 Id. at 49

39 Id.

40 Id. at 50.

41 Silver Care’s attempt to distinguish these inquiries from

factual disputes is unpersuasive. In its reply brief, Silver Care

states that “making simple factual determinations of whether

the meal break was interrupted and whether the employee

worked during the meal break” is not sufficient, because

“there first has to be a determination made, whether, if there

16

transform these factual disputes inherent to any FLSA claim

into disputes over provisions of the CBA subject to

arbitration.

In Babcock, we determined that the meal period at

issue there inured primarily to the benefit of the employees by

looking at both the facts and the CBA.42 First, we found that

though the plaintiffs faced some restrictions during their meal

breaks, “on balance, these restrictions did not predominantly

benefit the employer,” particularly because the plaintiffs

could “request authorization to leave [the workplace] for their

meal period and could eat lunch away from their desks.”43

Second, we separately considered the CBA, which we

thought was favorable for the employer’s position, because

the CBA “provide[d] corrections officers with the benefit of a

partially-compensated mealtime and mandatory overtime pay

if the mealtime is interrupted by work.”44

Notably, our consideration of the CBA was limited to

reading the text. We did not collapse the factual inquiry and

the consideration of the CBA into one. Nor could we. To

is an interruption, the interruption is considered part of the

paid portion of the break or the unpaid portion of the meal

break.” Appellant’s Reply Brief at 11. Silver Care never

makes clear why it matters to an FLSA claim how the CBA

would categorize the meal time interruptions. Either the

plaintiffs received compensation for interruptions during their

meal time, or they did not. The plaintiffs’ claim is based on

the FLSA rather than the CBA.

42 Babcock, 806 F.3d at 158.

43 Id. at 157.

44 Id.

17

characterize an essentially factual inquiry as a dispute of

practices or custom under the CBA such that arbitration is

necessary would be to circumvent Supreme Court precedent

that a plaintiff cannot be compelled to arbitrate his or her

federal statutory claims without a clear and unmistakable

waiver.45

Here, Silver Care has not pointed to any disputes over

the text of the CBA, which provides that “meal periods and

breaks shall be free and uninterrupted, and employees shall

not be on call. However, in emergencies, employees are

expected to respond.”46 Instead, Silver Care raises only

disputes about what actually happens during these meal

breaks. Thus, Silver Care’s reliance on Babcock, to transform

its factual disputes into contractual ones subject to the

arbitration clause, is misplaced.

* * *

In sum, neither of the plaintiffs’ FLSA claims depend

on disputed interpretations of CBA provisions such that

arbitration is necessary.47

45 Pyett, 556 U.S. at 260.

46 A 171.

47 The plaintiffs also raised some threshold questions

regarding whether the arbitration clause in the CBA is

enforceable at all. We need not address these questions

because, even assuming the arbitration clause is enforceable,

arbitration is inappropriate in this case where the plaintiffs’

FLSA claims do not depend upon any disputed interpretation

of the CBA.

18

III. Conclusion

For the foregoing reasons, we will affirm the District

Court’s denial of Silver Care’s motion to dismiss or to stay

the proceedings pending arbitration.

1

Tymeco Jones, et al v. SCO Silver Care Operations LLC

No. 16-1101

_________________________________________________

AMBRO, Circuit Judge, dissenting

As I read the Majority’s opinion, it considers

plaintiffs’ two claims brought under the Fair Labor Standards

Act (“FLSA”) (a pay-differentials claim and a meal-break

claim) as independent from the applicable collective

bargaining agreement (“CBA”). Because I believe both of

those claims rest on terms covered by the CBA, and because I

believe our holding in Vadino v. A. Valey Engineers, 903 F.2d

253 (3d Cir. 1990), controls, they should first be arbitrated as

the parties had agreed.

Vadino involved a union member challenging his pay

rate and overtime compensation under the FLSA. The

relevant CBA between the union and Vadino’s employer set

out various pay grades given the worker’s title and job

qualifications. Using that pay scale, Vadino argued that he

was entitled to receive a higher wage and thus should have

received overtime commensurate with it. The CBA also

provided for a grievance process that culminated in

arbitration.

Although Vadino’s claim for overtime implicated the

FLSA, we held that when a dispute arises “as to the correct

wage rate under a [CBA]” that also involves a “claim under

the overtime provision of the FLSA, the procedure we

envision is to decide the contract interpretation issue through

the grievance procedure to arbitration.” Id. at 266.

“Concurrent with that, the employee may bring a FLSA

claim, but the FLSA overtime claim would be dependent

upon the resolution . . . of the contract interpretation issue.”

Id. That holding applies to the case before us.

2

First, a central dispute between the parties involves the

“correct wage rate” under the CBA: the pay differentials.

Plaintiffs assert that the periodic increase in their weekly

wages from the pay differentials was not reflected in their

regular rate of pay for the purposes of calculating overtime.

Silver Care, however, contends that overtime for those pay

differentials was reflected in the pay differentials themselves

(for example, under the implied terms of the CBA plaintiffs

were not given the $3 per hour increase they received but

rather a $2 per hour increase, and the extra dollar they

received in wages was built-in overtime payment). The

parties clearly disagree as to what comprised those pay

differentials and what was the correct pay-differential wage.

I part ways with my colleagues that this dispute is

“completely irrelevant to a court’s analysis of the proper

overtime payment owed to the plaintiffs.” If anything, what

overtime is owed to plaintiffs depends on interpreting what

the parties agreed regarding the breakdown of the pay

differentials and what component of them is considered

compensable wages for calculating overtime. Under Vadino,

that interpretation first should be made by an arbitrator per

the arbitration provision in the CBA. Because these claims

involve disputed interpretations of the CBA, this case is not

like Bell v. Southeastern Pennsylvania Transportation

Authority¸733 F.3d 490 (3d Cir. 2013), in which we held that

FLSA claims need not be arbitrated so long as they are

completely independent of any interpretation of the applicable

CBA.

Second, plaintiffs’ claim that they should be

compensated for work performed during unpaid meal breaks

also falls within the CBA. The FLSA makes no mention of

meal breaks. Instead, the right to uninterrupted meal breaks

is created by the CBA, providing that “meal periods and

breaks shall be free and uninterrupted, and employees shall

not be on call. However, in emergencies, employees are

3

expected to respond.” Plaintiffs argue that the unpaid, uninterrupted breaks to which they were entitled in the CBA were in fact interrupted and they should be compensated for the work performed during that time. But their FLSA claim for compensation depends entirely on a breach-of-contract claim. If Silver Care did not violate the terms of the CBA by interrupting their guaranteed unpaid breaks, there would be no cause of action for relief. Thus the alleged breach of the CBA is a claim the parties agreed to arbitrate.

Furthermore, the text of the CBA is unclear as to what constitutes an interruption. Would being understaffed, as plaintiffs allege, be an emergency under the CBA? And if interrupted, could plaintiffs count that as one of their two interrupted breaks and take an uninterrupted break later? These questions go to the heart of what the parties intended when entering into the CBA. Because this FLSA claim is predicated on a breach-of-contract claim that also warrants interpretation of the CBA, the parties’ arbitration agreement should be honored and the issue resolved by an arbitrator.

As the claims before us require in my view an interpretation of the CBA before proceeding to the alleged FLSA violations, and CBA interpretations require arbitration here, I respectfully dissent.

For the foregoing reasons, we will affirm the District

Court’s denial of Silver Care’s motion to dismiss or to stay

the proceedings pending arbitration.