MADISON, Wis. – Union employees at a Hormel Foods canning plant in Beloit must be paid for the few minutes they spend each day “donning and doffing” their company-mandated clothing and equipment before and after their shifts, according to a state Supreme Court ruling Tuesday.
But the court’s conservative majority restrained the full force of the ruling, which affirmed a lower court’s decision, concluding that the workers are not entitled to compensation for taking off and putting on their work attire before and after lunch breaks spent off site.
The lead opinion was written by left-leaning Justice Shirley Abrahamson, who has been big labor’s best friend on the court for 40 years.
Abrahamson concluded that Wisconsin administrative code “requires Hormel to compensate its employees for the 5.7 minutes per day spent donning and doffing the clothing and equipment at the beginning and end of the day.”
A Rock County judge previously had awarded some 330 current and former employees at the plant combined monetary damages of $195,087.30 – $180,087.30 in unpaid wages for 5.7 minutes per day spent changing, and $15,000 in damages for “unpaid meal periods” under a stipulated agreement.
Liberal Justice Ann Walsh Bradley stood with Abrahamson. Justice David Prosser and Chief Justice Patience Roggensack, conservatives on the court, concurred with the lead opinion’s take on employee compensation for putting on and taking off work clothing before and after shifts, but dissented regarding pay for the small number of workers who leave the plant during the lunch break.
Justice Rebecca Bradley, new to the court, did not participate.
United Food & Commercial Workers Union Local 1473 alleged in its class action suit that Hormel violated Wisconsin wage and hour laws. Because the time spent putting on and taking off the required clothing and equipment is not included in the employees’ compensation, the union asserted that the employees are working more than 40 hours per week without being paid overtime.
Abrahamson wrote that Hormel adopted work rules to meet performance standards, maintain sanitation and protect employees and consumers.
“The Work Rules require that employees wear certain clothing and equipment. If employees do not wear the required clothing and equipment, the employees are subject to discipline, up to discharge,” the lead opinion states.
Employees are expected to wear Hormel-provided hard hats, hearing protection, eye protection and hair nets. Employees must wear clean and sanitary footwear at all times. The clothing is provided by the company and must be changed daily or more often, and cannot be worn outside the plant.
Abrahamson cites Wisconsin Department of Workforce Development code, providing that an employee must be paid for all time spent “in physical or mental exertion … controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer’s business.”
Putting on white shirts and pants, hard hats and hearing protection, and hand-washing evidently is considered “physical or mental exertion.”
The federal Fair Labor Standards Act generally requires employers to pay employees for the time they spend changing into required work clothing on the job site. But the act allows bargaining over the requirement.
In the 1980s, Hormel compensated its employees 12 minutes per day for “donning and doffing” under a then-existing collective bargaining agreement, according to court records. Eventually that compensation was “bargained away.”
The U.S. Supreme Court in 2014 weighed in on the “donning and doffing” question.
In Sandifer v. United States Steel Corp., the high court disqualified most clothing as fitting under the FLSA, ruling that the vast majority of the time employees spent dressing was not compensable under the act.
In his dissenting opinion, Gableman points to circuit court testimony in which a company official said the outfits and equipment are not necessary for the production of consumable goods at the Hormel plant.
“In sum, Hormel’s own employees put it best when they testified, and the circuit court found that ‘there is nothing essential about the clothes Hormel required them to wear in order to get their job done,’” the justice wrote.
Gableman takes aim at the idea that the work clothing and accoutrements are “integral and indispensable” to the job under Wisconsin code.
But the justice, in a stinging criticism of Abrahamson’s lead opinion, trains in on the broader issue of what he believes is an unsettled legal question.
The lead opinion, Gableman asserts, fails to determine whether the “de minimus” doctrine applies in Wisconsin, and does not provide any guidance for courts and litigants moving forward. De minimus non curat lex, one of the key legal questions in the case, is a Latin term, meaning the law does not concern itself with trifles.
Ultimately, in the Hormel case, the issue is whether a few minutes a day to put on and take off work clothes is worth the court’s time and consideration.
Abrahamson asserts the wages involved over the course of time “are not a ‘trifle’ either for the employees or for Hormel.”
But she ends there in the pursuit of whether the “de minimus” doctrine even exists in Wisconsin.
“In choosing not to answer the question before this court, the lead opinion fails to help ‘develop, clarify or harmonize the law,’” Gableman writes. “As a result, while this case is decided by the lead opinion for these employees at this facility, the issue of whether the de minimis doctrine applies in Wisconsin and how a de minimis determination would be conducted lives on.”
“The de minimis doctrine simply asks the following: should all ‘integral and indispensable’ activities, including those that last a single second or a handful of seconds or minutes be recorded by and paid for by an employer?”
Roggensack argues that doffing and donning work clothing for employees who choose to leave the workplace for lunch is not an “integral part of a principal activity” under the Wisconsin administrative code.
Court documents show only about 1 percent of employees left the plant on their 30-minute lunch break.
“First, no interest or activity of Hormel is served by employees leaving its facility during lunch break,” Roggensack wrote. “Stated otherwise, leaving Hormel’s facility at lunch does not aid in sanitary food production, which is a principal activity of Hormel. Second, the choice to leave Hormel’s facility at lunch is totally each individual employee’s choice, not Hormel’s.”
In an interesting exchange with the union’s legal counsel during oral arguments, Bradley raised the question of whether employees could be “gaming the system” by insisting they be paid for taking off and putting on work clothes and equipment to leave for lunch.
“I’m focusing on the lunch hour, the 30 minutes. Our opinions have to make sense . . . . This doesn’t make sense to me. If we would agree with the trial court that the donning and doffing for some employees who do this over the 30-minute lunch hour should be compensable, what, doesn’t that provide an incentive for . . . more, maybe all of the employees to say ‘oh let’s get time and a half, let’s put on and take off over the 30-minute lunch hour?’ That doesn’t make sense to me. It sounds like it will be giving a rather perverse incentive.”
“Now, so tell me why it does make sense. Tell me why, since it only affects a few, according to the record, a few employees, that shouldn’t be considered de minimis.”
The union attorney argued that it’s not gaming the system because the employees are “entitled to a 30-minute bona fide meal period.”