Steven J. Piper v. Jones Dairy Farm , 2020 WI 28 ( 2020 )

2020 WI 28SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP1681
COMPLETE TITLE: Steven J. Piper, Robert Bue, Scott R. Olson and
Leslie T. Smith,
Plaintiffs,
Jonathon Kracht, Gary Benes and Charles Manley,
Plaintiffs-Respondents,
v.
Jones Dairy Farm,
Defendant-Appellant.
ON BYPASS FROM THE COURT OF APPEALS
OPINION FILED: March 19, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 28, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Jefferson
JUDGE: William F. Hue
JUSTICES:
DALLET, J., delivered the majority opinion of the Court, in which
ANN WALSH BRADLEY, KELLY, and HAGEDORN, JJ., joined. ZIEGLER, J.,
filed a dissenting opinion, in which ROGGENSACK, C.J., joined.
REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant, there were briefs (in the court
of appeals) filed by Bernard J. Bobber, Keith E. Kopplin, Christina
L. Wabiszewski and Ogletree, Deakins, Nash, Smoak & Stewart, P.C.,
Milwaukee. There was an oral argument by Bernard J. Bobber.
For the plaintiffs-respondents, there was a brief (in the
court of appeals) filed by Micheal J. Modl and Axley Brynelson,
LLP, Madison and Douglas J. Phebus, Victor Arellano, and Arellano
& Phebus, S.C., Middleton. There was an oral argument by Michael
J. Modl.
2
2020 WI 28NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP1681
(L.C. No. 2010CV1210)
STATE OF WISCONSIN : IN SUPREME COURT
Steven J. Piper, Robert Bue, Scott R. Olson and
Leslie T. Smith,
Plaintiffs,
FILED
Jonathon Kracht, Gary Benes and Charles Manley,
MAR 19, 2020
Plaintiffs-Respondents,
Sheila T. Reiff
v. Clerk of Supreme Court
Jones Dairy Farm,
Defendant-Appellant.
DALLET, J., delivered the majority opinion of the Court, in which
ANN WALSH BRADLEY, KELLY, and HAGEDORN, JJ., joined. ZIEGLER, J.,
filed a dissenting opinion, in which ROGGENSACK, C.J., joined.
REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.
APPEAL from an order of the Circuit Court for Jefferson
County, William F. Hue, Judge. Affirmed in part, reversed in part,
and cause remanded.
¶1 REBECCA FRANK DALLET, J. Current and former employees
of Jones Dairy Farm (the employees) filed suit in December 2010
seeking unpaid wages for time spent at the start and end of their
No. 2018AP1681
shifts "donning and doffing" personal protective equipment and
walking to and from their workstations. Jones Dairy Farm (JDF)
denied liability, alleging the employees bargained over their
right to compensation for this time during collective bargaining
negotiations. Alternatively, JDF asserted that the doctrine of
de minimis non curat lex rendered this time non-compensable and
that equitable defenses precluded the employees' recovery of
damages. The circuit court denied JDF's motion for summary
judgment, concluding that: (1) the donning and doffing time was
compensable; (2) the employees could not modify or eliminate
compensation for donning and doffing through collective
bargaining; (3) the time was not rendered non-compensable by the
de minimis doctrine; and (4) JDF's four equitable defenses did not
preclude the employees' recovery of damages.1
¶2 On bypass from the court of appeals,2 JDF presents one
principal issue: under Wisconsin law can compensation for donning
and doffing personal protective equipment be modified or
eliminated through collective bargaining? In the alternative, JDF
contends that the de minimis doctrine renders the donning and
doffing time non-compensable and that the equitable defenses of
promissory estoppel, waiver, laches, and unjust enrichment
preclude the employees' recovery of damages.
Judge William F. Hue of Jefferson County Circuit Court
1
presided.
Jones Dairy Farm filed a petition to bypass pursuant to Wis.
2
Stat. (Rule) § 809.60 (2017-18). All subsequent references to the
Wisconsin Statutes are to the 2017-18 version unless otherwise
indicated.
2
No. 2018AP1681
¶3 We conclude that under Wisconsin law, compensation for
donning and doffing cannot be modified or eliminated through
collective bargaining. We assume without deciding that the
de minimis doctrine applies to claims arising under Wis. Admin.
Code § DWD 272.12 (May 2019),3 and determine that the time the
employees spent donning and doffing was not de minimis. Lastly,
we conclude that the circuit court erroneously exercised its
discretion when it summarily dismissed JDF's equitable defenses on
the basis of Wis. Stat. § 109.03(5) and we remand for full
consideration of those defenses. We therefore affirm in part,
reverse in part, and remand the case to the circuit court.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶4 JDF operates a food production plant in Fort Atkinson,
Wisconsin. JDF requires its employees to wear personal protective
equipment, including safety footwear, frocks, hairnets, aprons,
ear plugs, and plastic bump caps. The employees are required to
put on (don) and take off (doff) company-required equipment at the
beginning and end of their shifts.
¶5 The employees' wages have historically been set by a
collective bargaining agreement between the United Food and
Commercial Workers International Union, Local 538 (the Union) and
JDF. The 1979 collective bargaining agreement between the parties
expressly compensated the employees for donning and doffing their
personal protective equipment. As part of the collective
bargaining negotiations, in 1982, the parties stipulated that the
All subsequent references to the Wis. Admin. Code ch. DWD
3
272 are to the May 2019 register date unless otherwise indicated.
3
No. 2018AP1681
"daily credit" of compensated donning and doffing time would be
reduced from 12 minutes to six minutes. In 1985, JDF and the Union
agreed to eliminate the provision that compensated the employees
for donning and doffing. In 1994, the Union proposed that JDF
once again compensate the employees for 12 minutes of donning and
doffing time. At some point during the negotiations, the Union
withdrew the proposal. Collective bargaining resulted in an
increase in the employees' base wages of $.60/hour.
¶6 When the parties reconvened for negotiations in 1997,
the Union once again proposed 12 minutes of compensated time for
donning and doffing. The Union later withdrew the proposal and
collective bargaining resulted in an increase in the employees'
base wages of $.90/hour. Again, when the collective bargaining
agreement expired in 2000, the Union made a proposal for
compensated donning and doffing time, which it later withdrew.
This time, collective bargaining resulted in the employees
receiving a base wage increase of $1.50/hour. The same pattern
occurred in 2004 and 2009: the Union's proposal was withdrawn,
and base wages were ultimately increased by $1.25/hour.4
¶7 JDF asserts that this extensive bargaining history
demonstrates that the Union withdrew its proposals for
compensation for donning and doffing in exchange for an increase
in base wages. However, it admitted at oral argument that the
In 2006, the Union sent JDF a letter declaring that failure
4
to compensate the employees for donning and doffing and walking to
workstations violated the law and "must be remedied immediately."
The Union did not follow up or file a related grievance or wage
claim with the Department of Workforce Development (DWD).
4
No. 2018AP1681
record established "no direct tie" between the Union's withdrawal
of the proposal and the employees receiving an increase in base
wages.
¶8 In 2010, the employees filed this suit seeking unpaid
wages for time spent donning and doffing personal protective
equipment and walking to and from their workstations.5 In
response, JDF pleaded numerous affirmative defenses, including
promissory estoppel, waiver, laches, and unjust enrichment. The
parties stipulated that the total time employees spent donning and
doffing was 4.3 minutes per day.6 The stipulation also included
the amount of time the employees spent walking to and from their
workstations, up to 4.33 minutes per day. The agreed-upon relevant
time period at issue for the employees' claims was December 10,
2008, to November 25, 2013.7
¶9 JDF moved for summary judgment alleging that the Union
repeatedly proposed wages for donning and doffing during
collective bargaining negotiations and withdrew its proposals in
5 The employees filed a class action made up of approximately
227 current and former employees. The employees and JDF stipulated
to the certification of four subclasses based upon the type of
work that the employees performed.
6 The only exception was for the employees who worked in the
shipping department, where the vast majority of donning and doffing
activities were not required.
7 In August 2013 the court of appeals concluded that donning
and doffing was compensable time under the "plain terms of the DWD
code." Weissman v. Tyson Prepared Foods, Inc., 2013 WI App 109,
¶2, 350 Wis. 2d 380, 838 N.W.2d 502. Several months later, on
November 25, 2013, JDF began compensating its employees for donning
and doffing.
5
No. 2018AP1681
exchange for higher base wages. In the alternative, JDF asserted
that the time was rendered non-compensable by the de minimis
doctrine and that recovery of damages was precluded by the
equitable defenses of promissory estoppel, waiver, laches, and
unjust enrichment.
¶10 The circuit court determined that pursuant to United
Food & Commercial Workers Union, Local 1473 v. Hormel Foods Corp.,
2016 WI 13, 367 Wis. 2d 131, 876 N.W.2d 99, the time employees
spent donning and doffing was compensable. The circuit court
further concluded that "there is no exception under Wisconsin law
permitting collective bargaining to modify or eliminate"
compensation for donning and doffing. Finally, the circuit court
decided that the donning and doffing time here was not de minimis
and that JDF's four equitable defenses did not preclude the
employees' recovery of damages.
¶11 JDF petitioned this court for bypass of the court of
appeals, which we granted.
II. STANDARD OF REVIEW
¶12 We review a decision on summary judgment using the same
methodology as the circuit court. Green Spring Farms
v. Kersten, 136 Wis. 2d 304, 314-15, 401 N.W.2d 816 (1987).
Summary judgment shall be granted where the record demonstrates
"that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Wis. Stat. § 802.08(2).
6
No. 2018AP1681
¶13 This case involves interpretation and application of
Wis. Admin. Code § DWD 274.05 (April 2018).8 We interpret an
administrative regulation using the rules of statutory
interpretation. Hormel Foods Corp., 367 Wis. 2d 131, ¶30. While
we benefit from the analysis of the circuit court, the
interpretation of an administrative regulation is a question of
law which this court reviews de novo. State v. Brown, 2006 WI
131, ¶18, 298 Wis. 2d 37, 725 N.W.2d 262.
¶14 We also examine the circuit court's discretionary
determination as to the applicability of JDF's four equitable
defenses, which we review under an erroneous exercise of discretion
standard. See Johnson v. Cintas Corp. No. 2, 2012 WI 31, ¶22, 339
Wis. 2d 493, 811 N.W.2d 756. A circuit court erroneously
exercises its discretion when it applies an improper legal standard
or makes a decision not reasonably supported by the facts of
record. Id.; State v. McConnohie, 113 Wis. 2d 362, 371, 334
N.W.2d 903 (1983).
III. ANALYSIS
¶15 We initially consider whether, under Wisconsin law,
compensation for donning and doffing can be modified or eliminated
through collective bargaining. We next address JDF's contention
that the time spent donning and doffing was rendered non-
compensable by the de minimis doctrine. Finally, we resolve
All subsequent references to the Wis. Admin. Code ch. DWD
8
274 are to the April 2018 register date unless otherwise indicated.
7
No. 2018AP1681
whether the circuit court erred in concluding that Wis. Stat.
§ 109.03(5) barred JDF's four equitable defenses.
A. An employee's right to compensation for donning and
doffing personal protective equipment cannot be modified or
eliminated through collective bargaining.
¶16 The main issue presented on appeal is: under Wisconsin
law, can compensation for donning and doffing personal protective
equipment be modified or eliminated through collective bargaining?
Because time spent donning and doffing comprises "hours worked"
under Wis. Admin. Code. § DWD 272.12, and the law does not exempt
donning and doffing from the statutory requirement that employees
be paid for all hours worked, the answer is no. Contrary to JDF's
argument, neither Aguilar v. Husco International, Inc., 2015 WI
36, 361 Wis. 2d 597, 863 N.W.2d 556, nor Hormel Foods Corp., 367
Wis. 2d 131, indicate otherwise.
¶17 DWD is charged with "adopt[ing] reasonable and proper
rules and regulations" related to wage and labor laws in Wisconsin.
See Wis. Stat. § 103.005(1). DWD regulations determining an
employee's hours worked for purposes of compensation are found in
Wis. Admin. Code § DWD 272.12. This section requires employees to
be paid for all time spent in "physical or mental exertion (whether
burdensome or not) controlled or required by the employer and
pursued necessarily and primarily for the benefit of the employer's
business."9 Compensable time is defined as "the time on any
9 "Administrative rules enacted pursuant to statutory
rulemaking authority have the force and effect of law in
Wisconsin." Staples v. DHSS, 115 Wis. 2d 363, 367, 340 N.W.2d 194(1983).
8
No. 2018AP1681
particular workday at which such employee commences their
principal activity or activities." § DWD 272.12(1)(a)2. The term
"principal activity" "includes all activities which are an
integral part of a principal activity."10 § DWD 272.12(2)(e)1.
¶18 We first address whether the employees' time spent
donning and doffing personal protective equipment at the beginning
and end of the workday is an integral part of a "principal
activity" pursuant to Wis. Admin. Code § DWD 272.12(2)(e) and is
therefore compensable. In Tyson Foods, the court of appeals
concluded that donning and doffing personal protective equipment
within the prepared food industry was an "integral part of a
principal activity," and therefore compensable. Weissman v. Tyson
Prepared Foods, Inc., 2013 WI App 109, ¶2, 350 Wis. 2d 380, 838
N.W.2d 502 ("Tyson Foods"). In Hormel Foods Corp., a majority of
this court adopted the reasoning of Tyson Foods, and concluded
that donning and doffing protective clothing and equipment at the
beginning and end of the day11 was compensable because it was an
10The regulation provides three examples of what "is meant
by an integral part of a principal activity." Wis. Admin. Code
§ DWD 272.12(2)(e)1. The third example is a chemical plant worker
who dons and doffs clothing and equipment at the beginning and end
of his shift. See § DWD 272.12(2)(e)1.c.
11The parties in Hormel Foods Corp. also stipulated to the
employees' time spent walking to and from the workstations. The
lead opinion reasoned that "the time spent walking to or from
workstations or washing hands occurs after the employees'
'workday' begins and is thus compensable." United Food &
Commercial Workers Union, Local 1473 v. Hormel Foods Corp., 2016
WI 13, ¶21 n.6, 367 Wis. 2d 131, 876 N.W.2d 99 (Abrahamson, J.,
joined by Ann Walsh Bradley, J.).
9
No. 2018AP1681
integral part of the principal activity of food production.12 See
Hormel Foods Corp., 367 Wis. 2d 131, ¶78 (Abrahamson, J., joined
by Ann Walsh Bradley, J.) ("[W]e conclude that donning and doffing
the clothing and equipment at the beginning and end of the day in
the instant case is 'integral and indispensable' to the employees'
principal activities of producing food products."); id., ¶108
(Roggensack, C.J., concurring in part, dissenting in part, joined
by Prosser, J.) ("While I do not join the lead opinion, I agree
with its conclusion that donning and doffing of company-required
clothing and gear at the beginning and end of the workday is 'an
integral part of a principal activity' . . . for which
compensation is required." (internal footnotes omitted)).
¶19 In this case, the personal protective equipment that the
employees are required to don and doff is similar to that in Hormel
Foods Corp. and Tyson Foods, and the activities of the employees
likewise occur within the food production industry. We clarify
that the employees' time spent donning and doffing personal
protective equipment at the beginning and end of the workday in
this case is an "integral part of a principal activity," and is
therefore compensable under Wis. Admin. Code § DWD 272.12(2)(e).13
The main dispute between the lead opinion and Chief Justice
12
Roggensack's concurrence/dissent in Hormel Foods Corp. was whether
the donning and doffing was compensable when it occurred over the
lunch hour. See, e.g., Hormel Foods Corp., 367 Wis. 2d 131, ¶109.
JDF conceded at oral argument that the time employees spent
13
donning and doffing was compensable pursuant to Tyson Foods, 350
Wis. 2d 380, and Hormel Foods Corp., 367 Wis. 2d 131.
10
No. 2018AP1681
¶20 We next resolve whether compensation for donning and
doffing can nonetheless be modified or eliminated through
collective bargaining. The Wisconsin Statutes provide that an
employer may not contractually avoid its obligation to pay an
employee for all compensable time. See Wis. Stat. §§ 109.03(1),
109.03(5); Kieninger v. Crown Equip. Corp., 2019 WI 27, ¶15 & n.7,
386 Wis. 2d 1, 924 N.W.2d 172. There is no Wisconsin statute or
DWD regulation that expressly allows an employer to modify or
eliminate compensation for donning and doffing personal protective
equipment. This is in contrast to the federal Fair Labor Standards
Act (FLSA), which specifically permits collective bargaining over
compensation for donning and doffing, 29 U.S.C. § 203(o) (2012).14
Although Wisconsin's wage law is modeled after the FLSA, there is
no Wisconsin statute or regulation that is equivalent to § 203(o).
See Hormel Foods Corp., 367 Wis. 2d 131, ¶76 ("No counterpart to
29 U.S.C. § 203(o) exists in Wisconsin law.").
14Congress amended the Fair Labor Standards Act in 1947 to
add what is now 29 U.S.C. § 203(o). That provision provides:
In determining for the purposes of sections 206 and 207
of this title the hours for which an employee is
employed, there shall be excluded any time spent in
changing clothes or washing at the beginning or end of
each workday which was excluded from measured working
time during the week involved by the express terms of or
by custom or practice under a bona fide collective-
bargaining agreement applicable to the particular
employee.
See Sandifer v. U.S. Steel Corp., 571 U.S. 220, 226 (2014) (noting
that § 203(o) "provides that the compensability of time spent
changing clothes . . . is a subject appropriately committed to
collective bargaining").
11
No. 2018AP1681
¶21 JDF maintains that even though there is no express
exception in Wisconsin law permitting collective bargaining over
compensation for donning and doffing, a combination of two
footnotes in separate writings in Hormel Foods Corp., 367
Wis. 2d 131, indicates that a majority of the court has stated
otherwise. JDF cites to one footnote from the concurrence/dissent
of Chief Justice Roggensack which states:
Hormel does not argue that no compensation is due because
such compensation was bargained away in a collective
bargaining agreement, which is permitted under state and
federal law. See Aguilar v. Husco Int'l, Inc., 2015 WI
36, ¶24, 361 Wis. 2d 597, 863 N.W.2d 556; Wis. Admin.
Code § DWD 274.05; see also Sandifer v. [U.S.] Steel
Corp., [571] U.S. [220], 134 S. Ct. 870, 878-79, 187
L.E.2d 729 (2014).
See Hormel Foods Corp., 367 Wis. 2d 131, ¶113 n.6 (Roggensack,
C.J., concurring in part, dissenting in part, joined by Prosser,
J.). JDF also cites to a footnote in Justice Gableman's dissent
which states:
The Wisconsin Administrative Code allows employees to
bargain away rights they would otherwise have under the
Code as long as the parties enter into a [collective
bargaining agreement] and apply for a waiver or
otherwise meet the factors required for a waiver. See
Wis. Admin. Code § DWD 247.05; Aguilar v. Husco Int'l,
Inc., 2015 WI 36, ¶11, 361 Wis. 2d 597, 863
N.W.2d 556. . . .
But, as the concurring/dissenting opinion points out,
"Hormel does not argue that no compensation is due
because such compensation was bargained away in a
collective bargaining agreement, which is permitted
under state and federal law." Concurrence/Dissent, ¶113
n.6.
Hormel Foods Corp., 367 Wis. 2d 131, ¶145 n.3 (Gableman, J.,
dissenting, joined by Ziegler, J.).
12
No. 2018AP1681
¶22 For a number of reasons, these two footnotes do not
provide support for JDF's claim that compensation for donning and
doffing can be modified or eliminated through collective
bargaining. First and foremost, whether compensation for donning
and doffing can be modified or eliminated through collective
bargaining was not at issue in Hormel Foods Corp., 367 Wis. 2d 131.
Instead, the court addressed two issues: (1) whether donning and
doffing of company-required clothing and equipment was compensable
time under Wis. Admin. Code § DWD 272.12(2)(e); and (2) even if
that time was otherwise compensable, whether it was rendered non-
compensable under the de minimis doctrine. Hormel Foods Corp.,
367 Wis. 2d 131, ¶4. The issue of whether the parties bargained
over compensation for donning and doffing was not raised by the
parties.15 Four Justices' views on an un-briefed issue, contained
in separate writings that include those dissenting from the
judgment, cannot signify a majority of this court. See State v.
Griep, 2015 WI 40, ¶37 n.16, 361 Wis. 2d 657, 863 N.W.2d 567("Under Marks, the positions of the justices who dissented from
the judgment are not counted in examining the divided opinions for
holdings.") (citing Marks v. United States, 430 U.S. 188, 193
(1977)); see also State v. Coffee, 2020 WI 1, ¶70 n.1, 389
Wis. 2d 627, 937 N.W.2d 579 (Ann Walsh Bradley, J., dissenting)
("Although the vitality of Griep has been called into question,
currently it remains in force.").
JDF critiques the lead opinion in Hormel Foods Corp., 367
15
Wis. 2d 131, for not addressing the issue, while simultaneously
acknowledging that the issue was not raised by the parties.
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No. 2018AP1681
¶23 Additionally, these two footnotes rely upon Aguilar, 361
Wis. 2d 597, federal law, and Wis. Admin. Code § DWD 274.05 as
support. As we will illustrate, § DWD 274.05 and federal law do
not apply to this case,16 and Aguilar is distinguishable.
¶24 Wisconsin Admin. Code § DWD 274.05 is the sole basis for
obtaining a waiver or modification of Wisconsin wage law
requirements pursuant to a collective bargaining agreement. It
provides:
Except as provided in [§] DWD 274.08, where a
collectively bargained agreement exists, the department
may consider the written application of labor and
management for a waiver or modification to the
requirements of this chapter based upon practical
difficulties or unnecessary hardship in complying
therewith. If the department determines that in the
circumstances existing compliance with this chapter is
unjust or unreasonable and that granting such waiver or
modification will not be dangerous or prejudicial to the
life, health, safety or welfare of the employees, the
department may grant such waiver or modification as may
be appropriate to the case.
(Emphasis added.)
¶25 We rely on the same rules of construction to interpret
Wis. Admin. Code § DWD 274.05 that we apply to interpret a statute.
See Hormel Foods Corp., 367 Wis. 2d 131, ¶30 ("When interpreting
administrative regulations the court uses the same rules of
interpretation as it applies to statutes."); Orion Flight Servs.,
Inc. v. Basler Flight Serv., 2006 WI 51, ¶18, 290 Wis. 2d 421, 714
N.W.2d 130 ("Interpretations of code provisions, and the
16JDF concedes that it does not prevail if Wis. Admin. Code
§ DWD 274.05 does not apply to this case.
14
No. 2018AP1681
determination as to whether the provision in question is consistent
with the applicable statute, are subject to principles of statutory
construction."). We first look to the plain language of § DWD
274.05 to determine its meaning. Hormel Foods Corp., 367 Wis. 2d
131, ¶31. We further consider the context of the regulation and
the case law interpreting it. Id.¶26 By its express terms, Wis. Admin. Code § DWD 274.05 is
limited to "a waiver or modification to the requirements of this
chapter . . . ," that is, ch. DWD 274 (emphasis added). The
requirement that an employee be compensated for donning and doffing
is governed by Wis. Admin. Code § DWD 272.12(2)(e), which is found
in a different chapter, ch. DWD 272. The plain language of § DWD
274.05 therefore does not support JDF's argument that the employees
waived their right to compensation for donning and doffing, as
mandated by § DWD 272.12(2)(e).
¶27 JDF's argument also fails when Wis. Admin. Code § DWD
274.05 is considered in the context of surrounding regulations.
"As with statutory interpretation, we interpret the language of
a regulation in the context in which it is used, 'not in isolation
but as part of a whole; in relation to the language of surrounding
or closely-related [regulations]; and reasonably, [so as] to avoid
absurd or unreasonable results.'" Williams v. Integrated Cmty.
Servs., Inc., 2007 WI App 159, ¶12, 303 Wis. 2d 697, 736 N.W.2d
226 (quoting State ex rel. Kalal v. Circuit Court for Dane
Cty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110).
¶28 Wisconsin Admin. Code § DWD 274.045, a surrounding
regulation to § DWD 274.05, explicitly incorporates Wis. Admin.
15
No. 2018AP1681
Code § DWD 272.12. Section DWD 274.045, entitled "Interpretation
of hours worked," states that: "[t]he provisions of s. DWD 272.12
apply to the interpretation of hours worked under this chapter."
The text makes clear that provisions of § DWD 272.12 apply when
calculating "hours worked" under ch. DWD 274. Conversely, Section
DWD 274.05, entitled "Waiver or modification," does not explicitly
incorporate provisions from § DWD 272.12 with language similar to
§ DWD 274.045, such as: "[t]he provisions of s. DWD 272.12 apply
to a waiver or modification under this chapter." DWD knew how to
incorporate provisions from another chapter into regulations in
ch. DWD 274, yet it did not do so in § DWD 274.05. See Lake City
Corp. v. City of Mequon, 207 Wis. 2d 155, 171, 558 N.W.2d 100(1997) ("It is clear that the legislature knew how to accomplish
this goal [of qualifying the language of the statute], since it
included similar qualifying language in this very same statute.").
We therefore decline JDF's request to disregard the express textual
limitation of "this chapter" included in § DWD 274.05.17
¶29 We further observe that 29 U.S.C. § 203(o), the "federal
law" referred to in the Hormel Foods Corp. footnotes, is not
17There are no cases where Wis. Admin. Code § DWD 274.05 has
been applied outside of ch. DWD 274.
Even if § DWD 274.05 applied, it is undisputed that neither
JDF nor the Union requested a waiver from DWD of JDF's obligations
to compensate the employees for donning and doffing.
Additionally, we observe that a waiver pursuant to § DWD
274.05 is allowed only when DWD has determined that granting a
waiver or modification "will not be dangerous or prejudicial to
the life, health, safety or welfare of the employees . . . ."
16
No. 2018AP1681
dispositive because "[n]o counterpart to 29 U.S.C. § 203(o) exists
in Wisconsin law." Hormel Foods Corp., 367 Wis. 2d 131, ¶76. As
discussed above, Wisconsin law, unlike § 203(o), does not
expressly allow modification or elimination of compensation for
donning and doffing through collective bargaining. The Seventh
Circuit has rejected the contention that "§ 203(o) preempts
[Wisconsin] law that lacks an equivalent exception." Spoerle v.
Kraft Foods Glob., Inc., 614 F.3d 427, 428 (7th Cir. 2010).
¶30 Finally, the citation to Aguilar in the Hormel Foods
Corp. footnotes does not support JDF's assertion that compensation
for donning and doffing can be modified or eliminated through
collective bargaining. In Aguilar, a union filed a complaint with
DWD alleging that Husco owed back pay to its employees for 20-
minute meal breaks, which had been uncompensated pursuant to a
provision in the parties' collective bargaining agreement.
Aguilar, 361 Wis. 2d 597, ¶1. The union argued that the collective
bargaining agreement was in conflict with Wis. Admin. Code § DWD
274.02, which required employers to pay employees for meal breaks
that were shorter than 30 minutes.18 Id. DWD disagreed with the
union because it determined that, although the 20–minute unpaid
breaks technically violated § DWD 274.02, "the factors favoring a
waiver [pursuant to Wis. Admin. Code § DWD 274.05] were present in
this case (specifically, that the parties to the [collective
18The Aguilar court noted that although Wis. Admin. Code
§ DWD 274.05 allows employers and unions with a collective
bargaining agreement to request a waiver, no such request was made.
Aguilar v. Husco Int'l, Inc., 2015 WI 36, ¶2 & n.2, 361
Wis. 2d 597, 863 N.W.2d 556.
17
No. 2018AP1681
bargaining agreement] had agreed to the provision and that there
was no evidence that the shorter meal breaks jeopardized the life,
health, safety or welfare of employees)." Aguilar, 361
Wis. 2d 597, ¶3. This court upheld DWD's interpretation of § DWD
274.02 and its decision not to seek recovery of back pay since it
was "reasonable and consistent with the purpose of the regulation."
Aguilar, 361 Wis. 2d 597, ¶7.
¶31 Aguilar is distinguishable from this case in two
important respects. First, Aguilar involved collective bargaining
for meal breaks, which are regulated by Wis. Admin. Code § DWD
274.02. Unlike the section regulating donning and doffing, which
is found in Wis. Admin. Code ch. DWD 272, the section regulating
meal breaks is found within Wis. Admin. Code ch. DWD 274 and
therefore fits explicitly within the language of Wis. Admin. Code
§ DWD 274.05 allowing for waiver of collective bargaining within
"this chapter."
¶32 Second, although in Aguilar there was no formal request
for a waiver under Wis. Admin. Code § DWD 274.05, see Aguilar, 361
Wis. 2d 597, ¶2, the unpaid meal breaks were expressly agreed upon
and written into the collective bargaining agreement between the
parties. Here, it is undisputed that there was nothing written
into the collective bargaining agreement indicating that
compensation for donning and doffing was bargained over. Discovery
has been completed and, as JDF concedes, there is nothing in the
record that directly ties the Union's withdrawal of the proposal
for compensated donning and doffing time in exchange for an
increase in employees' base wages. Aguilar falls far short of
18
No. 2018AP1681
supporting JDF's argument that if an employee brings an unpaid
wage claim for donning and doffing under Wis. Admin. Code § DWD
272.12, it is subject to the waiver provision in § DWD 274.05.
¶33 Ultimately, the two footnotes that JDF relies upon from
Hormel Foods Corp. do not provide support for JDF's claim that
compensation for donning and doffing can be modified or eliminated
through collective bargaining. We reject JDF's attempt to ignore
the plain language of Wis. Admin. Code § DWD 274.05 and transform
four Justices' views on an un-briefed issue, contained in separate
writings that include those dissenting from the judgment, into a
bargaining right under state law that is commensurate with 29
U.S.C. § 203(o).
¶34 We conclude that under Wisconsin law, compensation for
donning and doffing cannot be modified or eliminated through
collective bargaining. We therefore affirm the circuit court's
denial of summary judgment on this issue.
B. The time employees spent donning and
doffing was not de minimis.
¶35 In the alternative, JDF asserts that the donning
and doffing time was rendered non-compensable because of
the doctrine of de minimis non curat lex, which means "the law does
not govern trifles." "De minimis non curat lex," Merriam
Webster Online Dictionary (2020), https://www.merriam-
webster.com/dictionary/de%20minimis%20non%20curat%20lex. The de
minimis doctrine "'permits employers to disregard . . . otherwise
compensable work '[w]hen the matter in issue concerns only a few
seconds or minutes of work beyond the scheduled working hours.''"
19
No. 2018AP1681
Hormel Foods Corp., 367 Wis. 2d 131, ¶97 (quoted source omitted).
The United States Supreme Court has reasoned that a few seconds or
minutes may be dismissed as de minimis because such "[s]plit-
second absurdities are not justified by the actualities of working
conditions or by the policy of the Fair Labor Standards Act."
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946),
superseded by statute as noted in Integrity Staffing Sols., Inc.
v. Busk, 574 U.S. 27 (2014). "The de minimis rule is concerned
with the practical administrative difficulty of recording small
amounts of time for payroll purposes." Lindow v. United States,
738 F.2d 1057, 1062 (9th Cir. 1984). In determining whether
otherwise compensable time is de minimis, courts have considered
the practical difficulty of recording the additional time, the
size of the aggregate claim, and whether the work was performed on
a daily basis. Id. at 1062-63 (citing national cases for this
proposition).
¶36 In Hormel Foods Corp., Justice Abrahamson's opinion and
Chief Justice Roggensack's partial concurrence both concluded that
the de minimis doctrine did not bar compensation for stipulated
time spent donning and doffing at the beginning and end of the
work day because it was "not a 'trifle'" and amounted to over $500
a year per employee. Hormel Foods Corp., 367 Wis. 2d 131, ¶105
(Abrahamson, J., joined by Ann Walsh Bradley, J.); id., ¶137,
(Roggensack, C.J., concurring in part, dissenting in part, joined
by Prosser, J.) ("I conclude that . . . the de minimis rule does
not apply to preclude compensation for 5.7 minutes per day for
each food preparation employee who dons whites and required gear
20
No. 2018AP1681
at the start of the workday and doffs them at the day's
conclusion."). Justice Abrahamson's opinion acknowledged,
however, that "[a]lthough the de minimis non curat lex doctrine is
an established feature of the Federal Fair Labor Standards Act, no
Wisconsin cases, statutes, or regulations state that the
de minimis doctrine applies to Wisconsin DWD regulations or in
employment disputes." Id., ¶99 (footnote omitted).
¶37 In this case, the parties stipulated that the total time
employees spent donning and doffing was 4.3 minutes per day and
that the amount of time the employees spent walking to and from
their workstations was up to 4.33 minutes per day. As a result,
we need not be a "time-study professional" to determine the amount
of time at issue. See id., ¶104. The average amount of damages
sought per employee is approximately $675 per year, for five
years.19 This amount is not a "trifle"; viewed in the aggregate
it is a significant amount of compensation for tasks that the
employees completed daily.
¶38 We assume without deciding that the de minimis doctrine
applies to claims arising under Wis. Admin. Code § DWD 272.12, and
conclude that the time spent donning and doffing here was not de
minimis. We therefore affirm the circuit court's denial of summary
judgment on this issue.
C. JDF's equitable defenses are not barred by
Wis. Stat. § 109.03(5).
The time employees spent walking to and from the various
19
departments and work areas was included in this calculation.
21
No. 2018AP1681
¶39 JDF raised several "alternative and affirmative
defenses" in its answer to the employees' complaint. JDF asserts
that since 1994 there has been an agreement that the Union, as the
authorized representative of the employees, would withdraw its
request for compensation for donning and doffing in return for JDF
increasing the employees' base wages.20 According to JDF, the
employees are now "double dipping" by seeking reimbursement for
compensation they have previously collectively bargained not to
receive.
¶40 On summary judgment, JDF raised four equitable defenses:
promissory estoppel, waiver, laches, and unjust enrichment. The
circuit court summarily rejected JDF's equitable defenses without
analyzing their merits. As support, the circuit court cited to
20In support, JDF points to two of the uncontested facts in
the record on summary judgment:
77. During the back and forth of the labor contract
negotiations, when the Union would withdraw one of its
economic proposals it did so with the expectation that
it was creating an incentive for the Company to make
some positive movement in increasing its economic offer.
102. The Company would not have been willing to
agree to give the same level of wage rate increase in
2009 if the Union insisted and prevailed on the Company
to pay an extra amount for donning/doffing and related
walking time.
However, it is undisputed that proposals can be withdrawn for
a multitude of reasons. As the employees assert, throughout the
parties' long bargaining history there have been hundreds or
thousands of proposals that were withdrawn during the course of
bargaining. JDF admitted at oral argument that there was nothing
in the record that explicitly tied the increase in the employees'
base wage to the Union's withdrawal of its proposal for compensated
donning and doffing time.
22
No. 2018AP1681
Wis. Stat. § 109.03(5),21 which it concluded "prevented clauses in
contracts from precluding the right to court access." The circuit
court viewed the four equitable defenses as contravening this
"strong statement of broad public policy supporting access to
courts."
¶41 We review the circuit court's discretionary
determination to dismiss JDF's equitable defenses using an
erroneous exercise of discretion standard. See Johnson, 339
Wis. 2d 493, ¶22. A circuit court erroneously exercises its
discretion when it applies an improper legal standard or makes a
decision not reasonably supported by the facts of record. Id.;
McConnohie, 113 Wis. 2d at 371.
¶42 The circuit court incorrectly concluded that the mere
existence of a statutory cause of action bars equitable defenses.
Wisconsin Stat. § 109.03(5) is a vehicle for employees to assert
their right to unpaid wages in state court. See, e.g., Aguilar,
21 Wisconsin Stat. § 109.03(5) states:
Except as provided in sub. (1), no employer may by
special contract with employees or by any other means
secure exemption from this section. Each employee shall
have a right of action against any employer for the full
amount of the employee's wages due on each regular pay
day as provided in this section and for increased wages
as provided in [§] 109.11(2), in any court of competent
jurisdiction. An employee may bring an action against
an employer under this subsection without first filing
a wage claim with the department under [§] 109.09(1).
An employee who brings an action against an employer
under this subsection shall have a lien upon all property
of the employer, real or personal, located in this state
as described in [§] 109.09(2).
23
No. 2018AP1681
361 Wis. 2d 597, ¶12 ("The plaintiffs then brought suit in state
court pursuant to Wis. Stat. § 109.03(5), which authorizes such
claims . . . ."); Hubbard v. Messer, 2003 WI 145, ¶10, 267
Wis. 2d 92, 673 N.W.2d 676 ("Wisconsin Stat. § 109.03(5) grants
employees a right of action against employers for all unpaid wages
due to the employee."). Principles of equity, on the other hand,
are not bound by statute and a determination as to their
applicability is within a circuit court's discretion. See Culbert
v. Ciresi, 2003 WI App 158, ¶16, 266 Wis. 2d 189, 667 N.W.2d 825("Whether to apply estoppel to preclude a party from raising a
defense is within the trial court's discretion."); see also Prince
v. Bryant, 87 Wis. 2d 662, 674, 275 N.W.2d 676 (1979) (emphasizing
that a circuit court has the power to apply an equitable remedy as
necessary to meet the needs of a case).
¶43 We conclude that the circuit court applied an improper
legal standard when it determined that Wis. Stat. § 109.03(5),
which outlines the right of an employee to bring a wage claim,
acted as a complete bar to JDF's equitable defenses. We therefore
remand the case to the circuit court for full consideration of
each of the equitable defenses and a determination as to whether
any of these defenses preclude the employees' recovery of damages.
IV. CONCLUSION
¶44 We conclude that under Wisconsin law, compensation for
donning and doffing cannot be modified or eliminated through
collective bargaining. We assume without deciding that the de
minimis doctrine applies to claims arising under Wis. Admin. Code
§ DWD 272.12, and conclude that the time the employees spent
24
No. 2018AP1681
donning and doffing was not de minimis. Finally, we conclude that
the circuit court erroneously exercised its discretion and the
case should be remanded for full consideration of JDF's four
equitable defenses. We therefore affirm in part, reverse in part,
and remand the case to the circuit court.
By the Court.—The decision of the circuit court is affirmed
in part, reversed in part, and cause remanded.
25
No. 2018AP1681.akz
¶45 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). I write
separately because the majority errs when it concludes that
compensable donning and doffing time is not subject to collective
bargaining. It is. The majority concludes otherwise because it
gives short-shrift to clearly contrary statements from four
justices of this court, and ignores the plain language of the
Wisconsin Administrative Code ("the Code"). I respectfully
dissent.
¶46 I conclude that compensation for donning and doffing is
subject to collective bargaining and may be bargained away,
modified, or waived under Wis. Admin. Code § DWD 274.05 (April
2018).1 I also conclude that there is an issue of material fact
regarding whether compensation for donning and doffing was
actually bargained away in this case. Finally, I conclude that
the de minimis doctrine applies in Wisconsin. I take issue with
the majority's failure to answer the important question whether
the de minimis doctrine applies and the majority's failure to
provide guidance regarding equitable defenses. Accordingly, I
would remand to the circuit court for further proceedings
consistent with this opinion.
¶47 While I disagree with the majority's conclusions, the
majority aptly summarizes the relevant and undisputed facts of
this case. I will not separately summarize the facts. Rather,
this writing assumes the reader's familiarity with the relevant
facts and will reference them as needed.
1 All subsequent references to the Wisconsin Administrative
Code ch. DWD 274 are to the April 2018 register date unless
otherwise indicated.
1
No. 2018AP1681.akz
I. STANDARD OF REVIEW
¶48 "This court applies the same summary judgment standards
as the circuit court, pursuant to Wis. Stat. § 802.08(2) and Bell
v. County of Milwaukee, 134 Wis. 2d 25, 30, 396 N.W.2d 328 (1986).
Summary judgment is appropriate when there are no issues of
material fact and only a question of law is presented. Id."
Aguilar v. Husco Int'l., Inc., 2015 WI 36, ¶17, 361 Wis. 2d 597,
863 N.W.2d 556.
¶49 In order to determine whether compensation for donning
and doffing was subject to collective bargaining in this case, we
must interpret the language of the Wisconsin Administrative Code
and then apply that language to the facts of this case. "The
interpretation and application of a statute present questions of
law that this court reviews de novo while benefiting from the
analyses of the court of appeals and circuit court." State v.
Alger, 2015 WI 3, ¶21, 360 Wis. 2d 193, 858 N.W.2d 346 (citing
State v. Ziegler, 2012 WI 73, ¶37, 342 Wis. 2d 256, 816
N.W.2d 238). "When interpreting administrative regulations the
court uses the same rules of interpretation as it applies to
statutes." United Food & Commercial Workers Union, Local 1473 v.
Hormel Foods Corp., 2016 WI 13, ¶30, 367 Wis. 2d 131, 876
N.W.2d 99. Accordingly, the interpretation and application of the
administrative code is a question of law we review de novo using
traditional tools of interpretation.
¶50 "We begin our analysis with the language of the relevant
[administrative regulation]. State ex rel. Kalal v. Circuit Court
for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.
2
No. 2018AP1681.akz
The purpose of [our] interpretation is to give the [regulation]
'its full, proper, and intended effect.' Id., ¶44. If the
[regulation's] language is plain, we end the inquiry and give the
language its 'common, ordinary, and accepted meaning, except [we
give] technical or specially-defined words or phrases . . . their
technical or special definitional meaning.' Id., ¶45." State v.
Lopez, 2019 WI 101, ¶10, 389 Wis. 2d 156, 936 N.W.2d 125. "This
court also analyzes the context and structure of a [regulation] to
determine its meaning. [Regulation] language 'is interpreted in
the context in which it is used; not in isolation but as part of
a whole; in relation to the language of surrounding or closely-
related [regulations] . . . .' [Kalal, 271 Wis. 2d 633, ¶46]. 'A
[regulation's] purpose or scope may be readily apparent from its
plain language or its relationship to surrounding or closely-
related [regulations]——that is, from its context or the structure
of the [regulation] as a coherent whole.' Id., ¶49." Lopez, 389
Wis. 2d 156, ¶11.
II. ANALYSIS
A. JDF Conceded That Its Employees' Donning
And Doffing Is Compensable.
¶51 Under the Wisconsin Administrative Code, employees are
entitled to compensation for certain activities. Generally
speaking, under Wis. Admin. Code § DWD 272.12(1)(a) (May 2019)2:
1. Employees subject to the statutes must be paid
for all time spent in "physical or mental exertion
2 All subsequent references to the Wisconsin Administrative
Code ch. DWD 272 are to the May 2019 register date unless otherwise
indicated.
3
No. 2018AP1681.akz
(whether burdensome or not) controlled or required by
the employer and pursued necessarily and primarily for
the benefit of the employer's business." The workweek
ordinarily includes "all time during which an employee
is necessarily required to be on the employer's
premises, on duty or at a prescribed work place."
2. "Workday," in general, means the period between
"the time on any particular workday at which such
employee commences their principal activity or
activities" and "the time on any particular workday at
which they cease such principal activity or activities."
The "workday" may thus be longer than the employee's
scheduled shift, hours, tour of duty, or time on the
production line. Also, its duration may vary from day to
day depending upon when the employee commences or ceases
their "principal" activities.
§ DWD 272.12(1)(a)1.-2. (emphases added).
¶52 Employees' daily preparatory and concluding activities
are not always compensable as "workday" "principal activities."
Wis. Admin. Code § DWD 272.12(2)(e). Rather, they may be
categorized as non-compensable "preliminary" and "postliminary"
activities. § DWD 272.12(2)(e)1.c. Compensable "principal
activities" include only "activities which are an integral part of
a principal activity." § DWD 272.12(2)(e)1. An activity is
"integral" if it is "closely related" and "indispensable" to
performance of an employee's principal activity. § DWD
272.12(2)(e)1.c. For example:
If an employee in a chemical plant . . . cannot perform
their principal activities without putting on certain
clothes, changing clothes on the employer's premises at
the beginning and end of the workday would be an integral
part of the employee's principal activity. On the other
hand, if changing clothes is merely a convenience to the
employee and not directly related to their principal
activities, it would be considered as a "preliminary" or
"postliminary" activity rather than a principal part of
the activity. However, activities such as checking in
and out and waiting in line to do so would not ordinarily
4
No. 2018AP1681.akz
be regarded as integral parts of the principal activity
or activities.
Id. (emphases added).
¶53 Accordingly, changing clothes or donning and doffing
protective gear requires compensation only if it is "integral" to
an employee's principal activity——only if it is "closely related"
and "indispensable" to the employee's principal activity——but not
if it is "merely a convenience."
¶54 In this case, JDF requires its employees to don and doff
"safety footwear, frocks, hairnets, aprons, ear plugs, and plastic
bump caps" "at the beginning and end of their shifts." Majority
op., ¶4. As the majority notes, "JDF conceded at oral argument
that the time employees spent donning and doffing was compensable"
under Hormel Foods Corp. and Weissman v. Tyson Prepared Foods.
Majority op., ¶19 n.13. See also Hormel Foods Corp., 367
Wis. 2d 131; Weissman v. Tyson Prepared Foods, Inc., 2013 WI App
109, 350 Wis. 2d 380, 838 N.W.2d 502. In light of that concession,
I assume without deciding that the donning and doffing at issue in
this case is integral to JDF's employees' principal activity.
B. Compensable Donning And Doffing Is
Subject To Collective Bargaining.
¶55 Four justices on this court have previously answered the
question whether compensation for donning and doffing may be
bargained away under Wisconsin law with a resounding "Yes" in
Hormel Foods Corp. In that case, Hormel did not argue that
compensation for donning and doffing had in fact been bargained
away in a collective bargaining agreement ("CBA"), but it was clear
5
No. 2018AP1681.akz
that it could have been. See Hormel Foods Corp., 367 Wis. 2d 131.
Chief Justice Roggensack wrote:
Hormel does not argue that no compensation [for
donning and doffing] is due because such compensation
was bargained away in a collective bargaining agreement,
which is permitted under state and federal law. See
Aguilar v. Husco Int'l, Inc., 2015 WI 36, ¶24, 361 Wis.
2d 597, 863 N.W.2d 556; Wis. Admin. Code § DWD 274.05;
see also Sandifer v. United States Steel Corp., [571
U.S. 220 (2014)].
Id., ¶113 n.6 (Roggensack, C.J. concurring/dissenting, joined by
Prosser, J.). And Justice Gableman wrote:
The Wisconsin Administrative Code allows employees
to bargain away rights they would otherwise have under
the Code as long as the parties enter into a CBA
agreement and apply for a waiver or otherwise meet the
factors required for a waiver. See Wis. Admin. Code
§ DWD [274.05]; Aguilar v. Husco Int'l, Inc., [362 Wis.
2d 597, ¶11].
Id., ¶145 n.3 (Gableman, J. dissenting, joined by Ziegler, J.).
This four-justice conclusion that compensation for donning and
doffing may be bargained away is correct and consistent with the
plain language of the Wisconsin Administrative Code and this
court's prior decision in Aguilar. Here is why.
¶56 First, the plain language of Wis. Admin. Code § DWD
274.05 permits compensation for donning and doffing to be bargained
away, waived, or modified. The employees argue that compensation
for donning and doffing is not subject to collective bargaining
because compensation for donning and doffing is regulated under
chapter 272 of the Code, and not chapter 274 (meaning § DWD 274.05
does not apply to it). The majority agrees. Majority op., ¶¶28,
34. But, as counsel for JDF explained at oral argument, this
6
No. 2018AP1681.akz
interpretation is incorrect. It is not true that chapters 272 and
274 are "two silos" "and never the two shall meet."
¶57 Wisconsin Admin. Code § DWD 274.05 allows for the waiver
or modification of compensation based on collective bargaining
agreements. It says:
Except as provided in s. DWD 274.08, where a collectively
bargained agreement exists, the department may consider
the written application of labor and management for a
waiver or modification to the requirements of this
chapter based upon practical difficulties or unnecessary
hardship in complying therewith. If the department
determines that in the circumstances existing compliance
with this chapter is unjust or unreasonable and that
granting such waiver or modification will not be
dangerous or prejudicial to the life, health, safety or
welfare of the employees, the department may grant such
waiver or modification as may be appropriate to the case.
§ DWD 274.05 (emphases added). The employees and the majority
focus on the "of this chapter" language but fail to appreciate
what that language actually means. Immediately prior to § DWD
274.05, in Wis. Admin. Code § DWD 274.045, the plain language "of
this chapter"——chapter 274——incorporates "[t]he provisions of
s. DWD 272.12." § DWD 274.045. It says, "The provisions of
s. DWD 272.12 apply to the interpretation of hours worked under
this chapter." Id. (emphasis added).
¶58 The majority misunderstands the significance of this
incorporation by reference. The majority concludes that since
Wis. Admin. Code § DWD 274.045 explicitly incorporates by
reference Wis. Admin. Code § DWD 272.12, and § DWD 274.05 does
not, the donning and doffing at issue in this case is not subject
to collective bargaining agreements under § DWD 274.05. The
majority's conclusion ignores the fact that § DWD 274.045
7
No. 2018AP1681.akz
incorporates § DWD 272.12 for "the interpretation of hours worked
under this chapter"——all of chapter 274——not just § DWD 274.045.
§ DWD 274.045 (emphasis added).
¶59 Accordingly, chapter 274 explicitly incorporates by
reference Wis. Admin. Code § DWD 272.12, which defines "hours
worked" for compensation purposes. Thus, if and when donning and
doffing is compensable under § DWD 272.12, that compensation is
subject to collective bargaining and waiver or modification under
Wis. Admin. Code § DWD 274.05. As noted above, JDF conceded that
the donning and doffing at issue in this case is compensable under
§ DWD 272.12. Accordingly, it was clearly subject to collective
bargaining and waiver or modification under § DWD 274.05.
¶60 Neither party in this case actually applied for a waiver
or modification of compensation for donning and doffing under Wis.
Admin. Code § DWD 272.12. But a formal application to the
Department of Workforce Development is not always necessary. Wis.
Admin. Code § DWD 274.05 says:
If the department determines that in the circumstances
existing compliance with this chapter is unjust or
unreasonable and that granting such waiver or
modification will not be dangerous or prejudicial to the
life, health, safety or welfare of the employees, the
department may grant such waiver or modification as may
be appropriate to the case.
Id. Thus, the right to compensation may be bargained away "as
long as the parties enter into a CBA agreement and apply for a
waiver or otherwise meet the factors required for a waiver. See
Wis. Admin. Code § DWD [274.05]; Aguilar v. Husco Int'l, Inc.,
[362 Wis. 2d 597, ¶11]." Hormel Foods Corp., 367 Wis. 2d 131,
¶145 n.3 (Gableman, J. dissenting, joined by Ziegler, J.) (emphases
8
No. 2018AP1681.akz
added). Under the plain language of the Code, the right to
compensation may be bargained away if (1) there is a CBA, and (2)
the § DWD 274.05 factors are met. And either the DWD or a reviewing
court may determine whether the § DWD 274.05 factors are met. We
came to a similar conclusion in Aguilar.
¶61 In that case, a union and Husco International, Inc.
agreed in a CBA that employee meal breaks less than 30 minutes
would not be compensated. Aguilar, 361 Wis. 2d 597, ¶9. The CBA
was contrary to Wis. Admin. Code § DWD 274.02 (2006), which
required compensation for meal breaks less than 30 minutes. Id.,
¶¶22-23. Later, as in this case, the union came back and asserted
"that Husco was required to pay employees for the unpaid breaks
notwithstanding the CBA." Id., ¶10. The union then filed a
complaint with the DWD. But "the DWD notified the union that the
DWD would not seek back pay" of the meal break compensation. Id.,
¶11. The initial decision stated:
"It is not disputed that the parties failed to request
a waiver from the department under DWD 274.05. However,
that is a technical violation of the code." After noting
that there was no reason to think that the agreement
"jeopardized the life, health, safety or welfare" of the
employees and that the meal-break length had been a part
of "the give and take of collective bargaining," the
decision concluded, "Based on [DWD] review of this
matter, the factors required to approve a waiver or
modification of DWD 272.02 are present in the facts of
this case."
Id., ¶26 (emphasis added). We upheld this determination as
reasonable and consistent with the purpose of the regulation. Id.,
¶¶36-37.
¶62 Accordingly, the failure to request a waiver from the
DWD is a mere technical violation. A party may still argue to the
9
No. 2018AP1681.akz
DWD or a reviewing court that the right to compensation was
bargained away, modified, or waived because (1) there is a CBA,
and (2) the § DWD 274.05 factors are met. See Wis. Admin. Code
§ DWD 274.05; Aguilar, 361 Wis. 2d 597, ¶¶26, 36-37.
¶63 The facts of Aguilar are similar to those of this case.
Here, the Union and JDF's negotiations during collective
bargaining involved discussions of compensation for donning and
doffing. And now, despite their CBAs, the employees seek back pay
for uncompensated donning and doffing. Also as in Aguilar, neither
party filed an application for a waiver with the DWD. Under
Aguilar, it is clear that the compensation for donning and doffing
in this case still could have been bargained away. It is also
clear that compensation for donning and doffing was bargained away
if (1) there was a CBA which bargained away compensation for
donning and doffing, and (2) the § DWD 274.05 factors were met.
What is less clear is whether the first prong is satisfied——whether
the employees' right to compensation for donning and doffing was,
in fact, bargained away.
C. There Is An Issue Of Material Fact Regarding
Whether Compensation For Donning And Doffing
Was In Fact Bargained Away.
¶64 It is undisputed that the Union requested compensation
for donning and doffing during collective bargaining negotiations
in 1994, 1997, 2000, 2004, and 2009. Majority op., ¶¶5-6. It is
also undisputed that, at some point during each negotiation, the
Union withdrew its request. Id. And it is undisputed that each
collective bargaining negotiation resulted in increased base wages
10
No. 2018AP1681.akz
for JDF employees. Id. Finally, JDF's Statement of Facts included
two undisputed assertions relevant to the negotiations:
77. [In 2004,] [d]uring the back and forth of the
labor contract negotiations, when the Union would
withdraw one of its economic proposals it did so with
the expectation that it was creating an incentive for
[JDF] to make some positive movement in increasing its
economic offer.
102. [JDF] would not have been willing to agree to
give the same level of wage rate increase in 2009 if the
Union insisted and prevailed on [JDF] to pay an extra
amount for donning/doffing and related walking time.
Majority op., ¶39 n.20.
¶65 On this record, it is undisputed that JDF and the Union's
collective bargaining negotiations over the years involved
discussions regarding compensation for donning and doffing. But
nothing in writing came out of the collective bargaining
negotiations which specifically stated whether the right to
compensation for donning and doffing was actually bargained away.
If the relevant CBAs between the Union and JDF had said, "In
exchange for the Union's waiver of compensation for donning and
doffing protective gear, JDF will hereby increase base wages by X
amount," then this would be an easy case. The employees would
have bargained away their right to compensation for donning and
doffing. But we have no such language in the CBAs. Thus, there
remains an issue of material fact: Was compensation for donning
and doffing actually bargained away?
¶66 Accordingly, I conclude that compensation for donning
and doffing is subject to collective bargaining and may be
bargained away under the plain language of Wis. Admin. Code § DWD
274.05. But I would remand for a factual determination under the
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first prong of § DWD 274.05——whether the right to compensation for
donning and doffing was actually bargained away in this case. The
second prong——whether the § DWD 274.05 factors are met——also
remains to be determined.
D. The Majority Fails To Decide Whether The De Minimis
Doctrine Applies And Provides No Guidance
Regarding The Applicability Of Equitable Defenses.
¶67 In addition to my disagreement with the majority's
conclusions, I also take issue with the majority because it dodges
important questions squarely before this court. The majority
"assume[s] without deciding that the de minimis doctrine applies
to claims arising under Wis. Admin. Code § DWD 272.12, and
conclude[s] that the time spent donning and doffing here was not
de minimis." Majority op., ¶38. Thus, the majority reaches its
desired result without deciding an issue squarely presented to
this court——whether the de minimis doctrine applies in Wisconsin.
And the majority comes to a legal conclusion that the time is not
de minimis without actually adopting a de minimis standard. The
majority dodges this important issue entirely the same way the
lead opinion in Hormel Foods Corp. did four years ago. See Hormel
Foods Corp., 367 Wis. 2d 131, ¶181 (Gableman, J. dissenting,
joined by Ziegler, J.) ("[T]he lead opinion, while pretending to
engage in a de minimis-like discussion, does not actually answer
the question before us. Specifically, the lead opinion does not
determine whether the de minimis doctrine applies in Wisconsin,
does not explain what test or approach it used to reach its
conclusion, and thus, does not provide any guidance for courts and
parties moving forward.").
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¶68 I cannot join the majority's de minimis analysis because
it leaves this important issue regarding the status of the de
minimis doctrine in Wisconsin undecided. Rather, I would conclude
that the de minimis doctrine does indeed apply to claims arising
under Wis. Admin. Code § DWD 272.12. As the United States Supreme
Court has explained:
When the matter in issue concerns only a few seconds or
minutes of work beyond the scheduled working hours, such
trifles may be disregarded. Split-second absurdities
are not justified by the actualities of working
conditions or by the policy of the Fair Labor Standards
Act. It is only when the employee is required to give
up a substantial measure of his time and effort that
compensable working time is involved.
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946)
(superseded by statute as noted in Integrity Staffing Solutions,
Inc. v. Busk, 574 U.S. 27 (2014)).
¶69 Furthermore, I cannot join the majority's de minimis
analysis because the majority comes to a conclusion that the
donning and doffing time is not de minimis without even adopting
a standard. Majority op., ¶37. The majority leaves the bench and
bar with nothing but confusion and unpredictability, just as the
lead opinion did in Hormel Foods Corp. See Hormel Foods Corp.,
367 Wis. 2d 131, ¶189 (Gableman, J. dissenting, joined by Ziegler,
J.) (footnote omitted) ("The lead opinion tiptoes past this
quagmire by sidestepping the question entirely. Consequently, the
question is left unanswered and Wisconsinites are left
wondering.").
¶70 The majority also "conclude[s] that the circuit court
applied an improper legal standard when it determined that Wis.
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Stat. § 109.03(5) . . . acted as a complete bar to JDF's equitable
defenses." Majority op., ¶43. It then remands to the circuit
court "for full consideration of each of the equitable defenses
and a determination as to whether any of these defenses preclude
the employees' recovery of damages." Id. I agree with the
majority that § 109.03(5) is not a complete bar to equitable
defenses, but I cannot join the majority opinion because it
provides the circuit court with no guidance whatsoever regarding
those equitable defenses.
III. CONCLUSION
¶71 I conclude that compensation for donning and doffing is
subject to collective bargaining and may be bargained away,
modified, or waived under Wis. Admin. Code § DWD 274.05. I also
conclude that there is an issue of material fact regarding whether
compensation for donning and doffing was actually bargained away
in this case. Finally, I conclude that the de minimis doctrine
applies in Wisconsin. I take issue with the majority's failure to
answer the important question whether the de minimis doctrine
applies and the majority's failure to provide guidance regarding
equitable defenses. Accordingly, I would remand to the circuit
court for further proceedings consistent with this opinion.
¶72 For the foregoing reasons, I respectfully dissent.
¶73 I am authorized to state that Chief Justice PATIENCE
DRAKE ROGGENSACK joins this dissent.
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No. 2018AP1681.rgb
¶74 REBECCA GRASSL BRADLEY, J. (dissenting). I agree with
the majority that Wisconsin law precludes parties from bargaining
away employees' statutory rights to compensation. However, I
disagree with the majority's conclusion that the time spent by
Jones Dairy Farm ("JDF") employees donning and doffing was de
minimis. I also disagree with the majority's decision to "assume
without deciding" that the de minimis doctrine applies to claims
under Wis. Admin. Code § DWD 272.12 (May 2019). The de minimis
doctrine is prevalent in other areas of Wisconsin law, and the
doctrine applies to employment claims under federal law. I would
apply the de minimis doctrine to claims under Wisconsin's labor
laws and conclude that the donning and doffing time in this case
was de minimis. I respectfully dissent.1
I
¶75 The doctrine of "de minimis non curat lex" recognizes
that "[t]he law does not concern itself with trifles." De Minimis
Non Curat Lex, Black's Law Dictionary (11th ed. 2019). This
doctrine appeared in 19th century Wisconsin cases and predates
statehood. See, e.g., Hass v. Prescott, 38 Wis. 146, 151 (1875)
(concluding that even if the judgment was 24 cents in excess of
what was appropriate, "it would not work a reversal of the
judgment. De minimis non curat lex"); Carman v. Hurd, 1 Pin. 619,
624 (1846) ("An excess of some sixty-four cents . . . is
complained of here. This is a small matter to urge in this court:
de minimis non curat lex."). This court has applied the doctrine
Because I conclude the time at issue in this case was de
1
minimis, I would not reach the equitable defenses raised by JDF.
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in a variety of contexts. See, e.g., Village of Lannon v. Wood-
Land Contractors, Inc., 2003 WI 150, ¶46, 267 Wis. 2d 158, 672
N.W.2d 275 (applying to use of personal property for tax
exemptions); Chappy v. LIRC, 136 Wis. 2d 172, 189, 401 N.W.2d 568(1987) (applying to contract rights); Wisconsin Emp. Relations Bd.
v. Lucas, 3 Wis. 2d 464, 469, 89 N.W.2d 300 (1958) (recognizing
state labor relations board cannot take jurisdiction of unfair
labor complaint if the allegation involves an actor engaging in
"more than de minimis" interstate commerce).
¶76 Wisconsin never affirmatively adopted or rejected the de
minimis doctrine in employment law. See majority op., ¶38 ("We
assume without deciding that the de minimis doctrine applies to
claims arising under Wis. Admin. Code § DWD 272.12[.]"); United
Food & Commercial Workers Union, Local 1473 v. Hormel Foods Corp.,
2016 WI 13, ¶¶98-100, 367 Wis. 2d 131, 876 N.W.2d 99 (Abrahamson,
J., joined by Ann Walsh Bradley, J.) ("Assuming, without deciding,
that the de minimis doctrine is applicable to claims under Wis.
Admin. Code § DWD 272.12[.]"); Id., ¶181 (Gableman, J.,
dissenting, joined by Zeigler, J.) ("[T]he lead opinion does not
determine whether the de minimis doctrine applies in
Wisconsin[.]").
¶77 In contrast, the doctrine is well-established in federal
employment law. In a case involving compensation for time spent
walking in the workplace, the Supreme Court stated:
We do not, of course, preclude the application of a de
minimis rule where the minimum walking time is such as
to be negligible. . . . When the matter in issue
concerns only a few seconds or minutes of work beyond
the scheduled working hours, such trifles may be
disregarded. . . . It is only when an employee is
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required to give up a substantial measure of his time
and effort that compensable working time is involved.
The de minimis rule can doubtless be applied to much of
the walking time involved in this case[.]
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946)
superseded by statute, Portal to Portal Act of 1947, Pub. L. No.
80-49, 61 Stat. 84, as recognized in Integrity Staffing Sols.,
Inc. v. Busk, 574 U.S. 27 (2014). In Integrity Staffing Sols.,
the Supreme Court again acknowledged the doctrine in the context
of employment compensation, "reject[ing] the employees' argument
that time spent waiting to undergo the security screenings is
compensable [under federal law] because Integrity Staffing could
have reduced that time to a de minimis amount." Integrity Staffing
Sols., 574 U.S. at 36.
¶78 The United States Court of Appeals for the Ninth Circuit
established criteria for determining whether otherwise compensable
time is de minimis: (1) "the amount of daily time spent on the
additional work"; (2) "the practical administrative difficulty of
recording the additional time"; (3) "the aggregate amount of
compensable time"; and (4) "the regularity of the additional work."
Lindow v. United States, 738 F.2d 1057, 1062-63 (9th Cir. 1984).
Although no exact amount or rigid rule is determinative, "[m]ost
courts have found daily periods of approximately 10 minutes de
minimis[.]" Id. at 1062 (citations omitted). Applying these
factors, the Lindow court deemed de minimis an average of 7 to 8
minutes a day performing pre-shift activity because recording this
time was administratively difficult and the employees did not
regularly perform the pre-shift compensable work. Id. at 1064.
¶79 Other federal courts of appeal are in accord. See, e.g.,
Kellar v. Summit Seating, Inc., 664 F.3d 169, 176-77 (7th Cir.
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2011) (applying Lindow; concluding pre-shift work between 15 and
40 minutes per day was not de minimis); Perez v. Mountaire Farms,
Inc., 650 F.3d 350, 372-75 (4th Cir. 2011); (adopting the Lindow
factors and holding 10.204 minutes per day was not de minimis);
Brock v. City of Cincinnati, 236 F.3d 793, 804-05 (6th Cir. 2001)
(holding the doctrine was not applicable after balancing the Lindow
criteria); Reich v. Monfort, Inc., 144 F.3d 1329, 1333-34 (10th
Cir. 1998) (applying the Lindow factors); Reich v. New York City
Transit Auth., 45 F.3d 646, 652-53 (2d Cir. 1995) (applying the
Lindow test and concluding extra time dog handlers spent attending
their dogs was de minimis); see also 29 C.F.R. § 785.47 (2019). I
would join other courts in adopting Lindow's test for assessing
whether the time Wisconsin employees spend donning and doffing is
de minimis.
II
¶80 In this case, the parties stipulated that the total time
an employee spent donning and doffing per day was 4.3 minutes.
The time spent walking to the employees' workstations varied from
.30 minutes to 4.33 minutes, depending on the department.
Collectively, the employees seek pay for time ranging from roughly
4 minutes and 40 seconds to roughly 8 minutes and 40 seconds. In
Lindow, the Ninth Circuit held that 7 to 8 minutes of time spent
per day was de minimis. See Lindow, 738 F.2d at 1064. Even
assuming 10 minutes of non-paid time, it was "negligible so that
the de minimis rule . . . should be applied." Green v. Planters
Nut & Chocolate Co., 177 F.2d 187, 188 (4th Cir. 1949). Indeed,
"[m]ost courts have found daily periods of approximately 10 minutes
de minimis even though otherwise compensable." Lindow, 738 F.2d
4No. 2018AP1681.rgb
at 1062 (citations omitted). As the dissent in Hormel noted,
"Lindow itself stands for the proposition that 7 to 8
minutes . . . qualified as de minimis." 367 Wis. 2d 131, ¶187
n.24 (Gableman, J., dissenting joined by Zeigler, J.) (citing
Lindow, 738 F.2d at 1063-64); see also Hoyt v. Ellsworth Co-op.
Creamery, 579 F. Supp. 2d 1132, 1138 (W.D. Wis. 2008) ("Spending
approximately 10 minutes per day changing may weigh in favor of
the time being considered de minimis."). This first factor
suggests the time spent donning and doffing by JDF employees, as
well as walking to their workstations, should be deemed de minimis.
¶81 The next consideration is the "administrative difficulty
of recording the additional time." Lindow, 738 F.2d at 1063. In
particular, the inquiry focuses on the "practical administrative
difficulty of recording small amounts of time for payroll
purposes." Id. at 1062 (emphasis added; citation omitted). While
the parties stipulated to the time in this case, such an ex-post
stipulation in the midst of litigation says nothing about the
administrative difficulty of recording the additional time. JDF
explained it stipulated to the number of minutes because litigating
the amount would be expensive due to the difficulty of accurately
measuring and recording the time spent donning and doffing.
¶82 One of the plaintiffs and another employee testified JDF
employees often engaged in personal conversations or personal
activities during the same pre- or post-shift time spent donning
and doffing. Under these circumstances, JDF would be challenged
to measure the time spent donning and doffing without also
capturing non-compensable personal activities. See Lindow, 738
F.2d at 1063-64 (concluding there would have been administrative
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difficulty "monitoring [] pre-shift activity" in part because of
a "wide variance in the amount of pre-shift time spent on
compensable activities as opposed to social activities.").
Similarly, there is no practical way JDF could account for the
differing speeds with which employees don and doff their clothing,
or walk to their stations. See Monfort, Inc., 144 F.3d at 1334(concluding that where "employees used a variety of safety gear
that took varying times to take on and off" it was
"administratively difficult to record the actual time each worker
engaged in these activities"). It would be nearly impossible for
JDF to accurately account for each employee's time spent donning
and doffing. The administrative difficulty in recording this
additional time weighs heavily in favor of the donning and doffing
time being de minimis.
¶83 The third Lindow factor examines the aggregate amount of
the donning and doffing time. The stipulated time range averages
$675 per employee per year. See majority op., ¶37. Even if the
aggregate compensable wages may weigh against determining the
claim to be de minimis, this factor is not dispositive. Rather,
"the administrative difficulty of recording the time and the
irregularity of the additional pre-shift work" renders the claim
de minimis even if "plaintiffs' aggregate claim may be
substantial." Lindow, 738 F.2d at 1064.
¶84 Lindow's final factor in the de minimis analysis
considers the "regularity of the additional work." Lindow, 738
F.2d at 1063. While the JDF employees don their clothes every day
prior to their shifts and doff them each day at the end of their
shifts, the irregularity in these activities, as in Lindow, stems
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from "a wide variance in the amount of pre-shift time spent on
compensable activities as opposed to social activities." Id. at
1063. The personal activities periodically and unpredictably
intermingled with donning and doffing, such as primping,
socializing with co-workers, reading newspapers, texting, and
surfing the internet, introduce irregularity in performing work
tasks and weigh in favor of the time being deemed de minimis under
the Lindow test. Id. at 1063-64.
¶85 While the aggregate size of the claim and daily practice
of donning and doffing weigh against deeming plaintiffs' claim de
minimis, the daily amount of time spent engaging in these
activities, the variability among employees in the time spent on
compensable work versus personal activities, and the
administrative difficulty in recording the additional time all
weigh in favor of deeming the time to be de minimis. Lindow
described the specific time spent each day performing the work as
the "important factor" and noted the rule in its entirety focuses
on the "administrative difficulty" consideration. See Lindow, 738
F.2d at 1062. The Supreme Court has likewise placed more weight
on the specific time spent each day on the challenged activity.
In Anderson, the Court noted that it could apply the de minimis
rule to "much of the walking time involved[,]" but remanded for a
factual determination "as to the amount of walking time in issue."
328 U.S. at 692 (emphasis added). The Court was clear its main
concern focused on the first factor adopted by Lindow:
When the matter in issue concerns only a few seconds or
minutes of working beyond the scheduled working hours,
such trifles may be disregarded. . . . It is only when
the employee is required to give up a substantial measure
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of his time and effort that compensable working time is
involved.
Id. (emphasis added). In rejecting application of the de minimis
rule, the Court just a few years ago emphasized the specific time
at issue. See Integrity Staffing Sols., 574 U.S. at 36-37
(rejecting an argument that the time spent was compensable because
the employer "could have reduced that time to a de minimis amount."
(emphasis added)).
III
¶86 In the context of labor law, Wisconsin cases provide no
guidance regarding application of the de minimis doctrine, this
court having declined to decide the issue. We have already adopted
the doctrine in other areas of law, see supra ¶75, and we should
extend the doctrine to wage and hour claims, consistent with
federal courts. Harmonizing the Supreme Court's statements in
Anderson and Integrity Staffing Sols. with the Ninth Circuit's
holding in Lindow, the specific time spent each day on the activity
and the administrative difficulty in recording the additional time
are the most important considerations in the de minimis analysis.
The roughly 4 minutes and 40 seconds to 8 minutes and 40 seconds
spent per day donning and doffing and walking to workstations
render the time de minimis, particularly when coupled with the
administrative difficulty in recording this extra time for payroll
purposes. Accordingly, I would determine the time to be non-
compensable under the de minimis doctrine. I respectfully dissent.
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1