March 1, 2016 – Workers who spent time putting on (donning) and taking off (doffing) required clothes and gear before and after shifts will be paid for it, under a recent Wisconsin Supreme Court decision that affirmed a judgment for the workers’ union.

On behalf of 330 current and former workers, the United Food & Commercial Workers Union filed a class action against Hormel Food Corporation, which has a canning plant in Beloit, alleging Hormel violated state wage and hour laws. The union said Hormel employees worked overtime without pay, representing time spent donning and doffing.

The Rock County Circuit Court agreed with the union, and awarded the class approximately $180,000 in unpaid wages, which amounted to compensation for 5.7 minutes per day. Hormel also agreed to pay $15,000 for donning and doffing at unpaid meal periods (however, a majority effectively reversed the judgment on that amount).

Hormel appealed, and the state appeals court certified the case for review. In United Food & Commercial Workers Union, Local 1473 v. Hormel Foods Corporation, 2016 WI 13 (March 1, 2016), the Wisconsin Supreme Court (4-2) affirmed the circuit court.

Four justices agreed that Hormel must compensate its workers for donning and doffing work-required clothing at the beginning and end of the day.

“[T]he employees’ donning and doffing clothing and equipment at the beginning and end of the day brought Hormel into compliance with federal food and safety regulations and was integral and indispensable to sanitation and safety in the employees’ principal work activities, namely food production,” wrote Justice Shirley Abrahamson in a lead opinion.

Chief Justice Patience Roggensack, and Justices David Prosser and Ann Walsh Bradley agreed with that conclusion. That majority also agreed that a de minimis rule did not remove Hormel’s obligation to pay for 5.7 minutes of extra work per day.

However, Abrahamson’s lead opinion did not affirm the lower court’s declaration that employees should be paid for donning and doffing if they leave for lunch breaks. Abrahamson said the parties agreed on that issue and rendered no opinion on it.

Chief Justice Roggensack dissented in part, joined by Justice Prosser. They concluded that compensation is not required when employees change clothes for lunch.

“Leaving during the lunch break serves no interest of Hormel, is not ‘an integral part of a principal activity’ of the employer within the meaning of [the administrative code], and serves only employees’ interests,” Chief Justice Roggensack wrote.

Justice Michael Gableman dissented, joined by Justice Annette Ziegler. They concluded that the workers were not entitled to compensation for donning and doffing at all.

“I do not agree … that Hormel must compensate its employees for the time they spend ‘donning and doffing’ company required ‘whites’ at the Beloit cannery,” wrote Justice Gableman. He said “’donning and doffing’ of the ‘whites’ in this case is not ‘integral and indispensable’ to the employees’ principal work activity of canning food.”

Tyson Foods Applies

The lead opinion noted that Hormel’s operations fall under the purview of several federal regulators, which promulgate and enforce federal regulations pertaining to food processing facilities and workplace safety. Hormel’s policies reflect those laws.

Hormel workers must wear certain clothing and equipment. Failing to do so can result in discipline. They must wear hard hats and eye protection. They must also wear clothing that is daily provided by Hormel at the facility and cannot be worn outside the plant.

Hormel did not pay employees for time spent to put on and remove the work-required clothing. However, the parties agreed that time spent donning and doffing, washing hands, and walking to work stations takes 5.7 minutes, or 28.5 minutes per week.

The state Department of Workforce Development (DWD) maintains regulations that determine the “activities” that must be compensated, distinguishing between “incidental preparatory and concluding activities” and “integral and indispensable” activities.

The DWD regulations include an example of a “chemical plant” worker who cannot perform principal activities without donning and doffing required clothing on the employer’s premises. The DWD viewed that as compensable donning and doffing.

In Weissman v. Tyson Prepared Foods Inc., 2013 WI App 109, 350 Wis. 2d 380, 838 N.W.2d. 502, the court noted the “chemical plant” worker example in concluding that workers at Tyson Foods must be paid for donning and doffing required work clothing.

“The Tyson Foods case presents essentially the same fact situation as presented in the instant case,” wrote Justice Abrahamson in the lead opinion. “In Tyson Foods and in the instant case, the clothing and equipment requirements at the beginning and end of the day are integral and indispensable to the employees’ principal work activities.”

Hormel argued that Tyson Foods conflicts with the holding of a U.S. Supreme Court case – Integrity Staffing Solutions Inc. v. Busk, 135 S. Ct. 513 (2014) – and should be overturned. In that case, the Court ruled that an employer did not need to compensate employees while they waited to undergo anti-theft security screening each day.

But the majority concluded that Integrity Staffing does not conflict and Tyson Foods remains good law.

“Both cases declare that an activity is integral and indispensable to the principal activities if it is an intrinsic element with which the employee cannot dispense if he or she is to perform the employee’s principal activities,” Justice Abrahamson wrote.

De Minimis Non Curat Lex

Hormel argued that the doctrine of de minimis non curat lex (the law does not concern itself with trifles) applies to bar compensation for only 5.7 minutes of time.

The lead opinion assumed without deciding that the doctrine applies to DWD regulations, even though no statute, regulation, or case says that it does.

“Viewed in light of the employees’ hourly rate of $22 per hour, the unpaid period in question may amount to over $500 per year for each employee and substantial sums for Hormel,” Justice Abrahamson wrote. “[I]n the instant case this time is not a ‘trifle.’”

Roggensack’s Concurrence/Dissent

Chief Justice Roggensack, joined by Justice Prosser, agreed that donning and doffing before and after shifts is compensable because Hormel produces sanitary food and the clothing and equipment requirements are an integral part of keeping food sanitary.

But she dissented to conclude – creating a majority on this point – that Hormel need not pay for donning and doffing that occurs during meal breaks when employees leave.

“[L]eaving Hormel’s facility at lunch does not aid in sanitary food production, which is a principal activity of Hormel,” she wrote. “Second, the choice to leave Hormel’s facility at lunch is totally each individual employee’s choice, not Hormel’s.”

In a footnote, the chief justice said that four justices agreed on this point, so the circuit court order regarding the $15,000 for unpaid meal periods is reversed.

Finally, Chief Justice Roggensack applied a test from the federal Ninth Circuit to determine that the de minimis rule did not eliminate Hormel’s obligation to pay compensation for donning and doffing if “cabined” together rather than applied on an individual basis.

The union sought recovery as a class, consistent with prior collective bargaining agreements that paid all employees the same amount of donning and doffing time.

“If the lead opinion were construed as leaving the amount of donning and doffing time open to adjustment for future work days, I could not concur with the lead opinion in any respect,” Chief Justice Roggensack wrote.

She noted that Hormel, in the future, could pay compensation at the stipulated amount of 5.7 minutes per employee or shorten future work days by 5.7 minutes.

Gableman Dissent

Justice Gableman, joined by Justice Ziegler, dissented on almost all points. He said Tyson Foods is still good law, but in this case, Hormel is not required to pay for donning and doffing because it is not integral to the principal activity of canning food.

“[A]n employee could easily dispense with the ‘donning and doffing’ of the ‘whites’ and still complete his or her principal activity of safely canning clean food,” he wrote.

Gableman noted displeasure with the lead opinion’s failure to directly address the de minimus question, noting law that precludes compensation on matters concerning seconds or minutes. He said actual “donning and doffing” here amounts to 2.9 minutes.  

“Because the lead opinion elects to leave today’s question unanswered, it short-changes the people of Wisconsin,” Justice Gableman wrote.

Justice Rebecca Bradley did not participate.