A series of cases decided in Wisconsin state and federal courts has advanced jurisprudence regarding wage and hour donning and doffing compensation cases. Most recently, the Wisconsin Supreme Court affirmed Rock County Circuit Judge Michael Fitzpatrick’s 2014 decision that the food production workers at the Beloit, Wisconsin, Hormel canning plant are entitled to compensation for the time they spend putting on and taking off required sanitary clothing and personal equipment before and after their work shift. United Food & Commercial Workers Union, Local 1473 v. Hormel Foods Corp., 2016 Wisc. LEXIS 13 (Wis., March 1, 2016).

The case was brought under the Department of Workforce Development (DWD)’s compensable work time regulations. See, Wis. Admin. Code §DWD 272.12. Compensable work time is time exerted on behalf of an employer during a workday – that is, time spent completing a principal activity for the employer.

To be compensable under the DWD’s regulations, the donning and doffing time must be an integral part of a principal activity and indispensable to its performance. Although the sanitary clothing and equipment was required by company policy, it was the means by which Hormel chose to comply with mandatory federal food sanitation regulations. As such, the court held that the putting on and taking off of that clothing and equipment was, by the company’s definition, integral to the employees’ principal activity of canning food products.

Hormel argued that the United States Supreme Court’s ruling in Integrity Staffing Solutions, Inc. v. Busk required the opposite result. See Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513, 190 L. Ed. 2d 410 (2014). The Integrity Staffing Solutions employees worked in an Amazon.com warehouse and were required to undergo a daily antitheft security scan before leaving the warehouse. The Supreme Court held that the security scan was not integral to the employees’ warehouse work. Even though the scans were required by the employer, the time spent was “preliminary” and “postliminary” under 29 C.F.R. § 790.7(g) and, therefore, not compensable.

Referring to the Wisconsin Court of Appeals’ decision in Weissman v. Tyson Prepared Foods, Inc., 838 N.W.2d 502 (Wis.App. 2013)(employer-required sanitary clothing and equipment in poultry processing plant is integral to the employee’s principal activity of food packaging), theHormel court reconciled its decision with the Integrity Staffing case by explaining that a work-related activity is not integral just because an employer requires it. To be compensable under Wisconsin law, the activity must be an intrinsic element without which the employee cannot perform the employer’s principal activity.

It is interesting to note that, in a 2013 case out of the Eastern District of Wisconsin, the Seventh Circuit Court of Appeals made it clear that plaintiffs are not required to prove that employer-required clothing or equipment is mandated by federal law. In Dekeyser v. Thyssenkrupp Waupaca, Inc., 735 F.3d 568 (7^th Cir. 2013), the court reversed the lower court’s decision awarding summary judgment to the company. The district court had ruled that because OSHA did not require employees at the iron foundry to shower and change clothes, the time was not compensable under the Fair Labor Standards Act. The Seventh Circuit held that the absence of an OSHA standard was not entitled to a negative inference. Instead, the court would have to examine the nature of the work performed and the health impact of employees’ exposure to certain chemicals.

Employers’ collective bargaining agreement defense to donning and doffing claims is alive and well. The Fair Labor Standards Act’s Section 203(o) permits employers and unions to negotiate whether “changing clothes” is compensable under a collective bargaining agreement. 29 U.S.C. §203(o). See, Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 187 L. Ed. 2d 729 (2014).

However, Section 203(o) does not pre-empt state law. In Spoerle v. Kraft Foods Global, Inc., the Seventh Circuit upheld the Western District of Wisconsin court’s decision that state law overrode the collective bargaining agreement in which the company and the union agreed that donning and doffing sanitary clothing and safety gear was not compensable time.

Although Section 203(o) allows unions and employers to trade off the number of compensable hours for a higher wage rate in collective bargaining, if state law requires payment for donning and doffing time, a collective bargaining agreement cannot supersede state law. The employee plaintiffs were entitled, under the same regulations applied in the Hormel decision, to compensation for their donning and doffing time in spite of an explicit term in their collective bargaining agreement to the contrary. Spoerle v. Kraft Foods Global, Inc., 614 F.3d 427 (7^th Cir. 2010).

Based on these decisions, donning and doffing questions may be analyzed as follows:

• Is the donning and doffing activity (or extra activity required by the employer) an integral part of the principal activity performed by the employee for the employer?
• Is the activity indispensable to the performance of the principal activity?
• Is there a federal or state standard that requires the activity?
• If not, what is the nature of the work performed and the impact of the activity on employees?
• Is there a collective bargaining agreement that addresses whether the activity is compensable?
• If so, does state law or regulation on the compensability of the activity supersede the collective bargaining agreement?

This area of the law will certainly continue to develop as wage and hour cases continue to proliferate.

Julie Lewis is a partner at Nowlan & Mouat LLP in Janesville. She specializes in labor, employment and employee benefits law with an emphasis on management-side representation.