United Food v. Hormel Foods Corporation

2016 WI 13SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP1880
COMPLETE TITLE: United Food & Commercial Workers Union, Local
1473, Dennis
A. Warne, Charles R. Seeley and Pamela Collins,
Plaintiffs-Respondents,
v.
Hormel Foods Corporation,
Defendant-Appellant.
ON CERTIFICATION FROM THE COURT OF APPEALS
OPINION FILED: March 1, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 5, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Rock
JUDGE: Michael R. Fitzpatrick
JUSTICES:
CONCUR & DISSENT: ROGGENSACK, C.J., PROSSER, J., concur and
dissent. (Opinion Filed)
DISSENTED: Gableman, Ziegler, J.J., dissent. (Opinion
Filed)
NOT PARTICIPATING: R.G. Bradley, J., did not participate.
ATTORNEYS:
For the defendant-appellant, there were briefs by Thomas P.
Krukowski and Whyte Hirschboeck Dudek, S.C., Milwaukee, and oral
argument by Thomas P. Krukowski.
For the plaintiffs-respondents, there was a brief by Mark
A. Sweet and Sweet and Associates, LLC, Milwaukee, and oral
argument by Mark A. Sweet.
2016 WI 13NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP1880
(L.C. No. 2010CV2595)
STATE OF WISCONSIN : IN SUPREME COURT
United Food & Commercial Workers Union, Local
1473, Dennis A. Warne, Charles R. Seeley and
Pamela Collins,
Plaintiffs-Respondents, FILED
v. MAR 1, 2016
Hormel Foods Corporation, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.
APPEAL from a judgment and order of the Circuit Court for
Rock County, Michael R. Fitzpatrick, Judge. Affirmed.
¶1 SHIRLEY S. ABRAHAMSON, J. This is an appeal from a
judgment and order of the circuit court for Rock County, Michael
R. Fitzpatrick, Judge, in favor of United Food & Commercial
Workers Union, Local 1473 (and various individuals1), the
1
Dennis A. Warne, Charles R. Seeley, and Pamela Collins
join as plaintiffs. We refer only to the Union as the plaintiff
for simplicity.
No. 2014AP1880
plaintiffs, against Hormel Foods Corporation, the defendant.
The court of appeals certified the appeal to this court pursuant
to Wis. Stat. § 809.61 (2013-14).2
¶2 This is a "donning and doffing" wage and hour case.
Employees seek compensation for time spent putting on
("donning") and taking off ("doffing") company-required clothing
and equipment before and after shifts at Hormel's canning plant
located in Beloit, Wisconsin.
¶3 The Union filed a class action on behalf of a class of
current and former employees in Hormel's plant, alleging that
Hormel violated Wisconsin wage and hour laws by failing to pay
the employees for time spent at the plant putting on and taking
off the required clothing and equipment. Because the time spent
putting on and taking off the required clothing and equipment is
not included in the employees' compensation, the Union asserts
that the employees are working more than 40 hours per week
without being paid overtime.
¶4 The certification presents two questions:
(1) Is the donning and doffing of the company-
required clothing and equipment compensable work
time or non-compensable preliminary and
2
All subsequent references to the Wisconsin statutes are to
the 2013-14 version unless otherwise indicated.
2
No. 2014AP1880
postliminary activities under Wis. Admin. Code
§ DWD 272.12(2)(e) (Feb. 2009)3; and
(2) Even if the time spent donning and doffing is
otherwise compensable work time, is this time
non-compensable under the doctrine of de minimis
non curat lex?
¶5 After a bench trial, the circuit court issued a
comprehensive decision holding in favor of the Union and
requiring Hormel to compensate its employees for time spent
donning and doffing the required clothing and equipment at the
plant at the beginning and end of the day and during unpaid meal
periods (for the one percent of employees who left the plant
during their meal periods). The circuit court further held,
"Hormel has failed to carry its burden to show the applicability
of the de minimis doctrine, and, therefore, that doctrine is not
controlling (assuming it exists at all in Wisconsin law)."
¶6 Based on these conclusions, the circuit court awarded
the class monetary damages of $195,087.30 broken down as
follows: (1) $180,087.30 in unpaid wages for 5.7 minutes per
day spent donning and doffing the required clothing and
equipment; and (2) pursuant to a stipulation of the parties,
$15,000 in damages for unpaid meal periods.
¶7 We conclude:
3
All subsequent references to the Wisconsin Administrative
Code are to the February 2009 register date unless otherwise
noted.
3
No. 2014AP1880
(1) Wisconsin Admin. Code § DWD 272.12 requires Hormel
to compensate its employees for the 5.7 minutes
per day spent donning and doffing the clothing and
equipment at the beginning and end of the day.
Relying on the Tyson Foods case, Weissman v. Tyson
Prepared Foods, Inc., 2013 WI App 109, 350
Wis. 2d 380, 838 N.W.2d 502, as did the circuit
court, we conclude, as did the circuit court, that
the 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.4
(2) The donning and doffing of clothing and equipment
at the beginning and end of the day does not fall
within the doctrine of de minimis non curat lex.
The wages involved are not a "trifle" either for
the employees or for Hormel.
4
The court granted review in the Tyson Foods case. See
Weissman v. Tyson Prepared Foods, Inc., 2013 WI App 109, 350
Wis. 2d 380, 838 N.W.2d 502, review granted, 2014 WI 3, 352
Wis. 2d 351, 842 N.W.2d 359. The review was dismissed prior to
argument or a decision by this court, however, when the parties
settled the litigation.
4
No. 2014AP1880
¶8 We also briefly address whether the time spent donning
and doffing Hormel's required clothing and equipment during meal
periods is considered compensable work time.
¶9 On appeal Hormel argues that the Tyson Foods case was
wrongly decided and "puts state law at odds with federal
authority, namely, with the U.S. Supreme Court's holding" in a
recent decision, Integrity Staffing Solutions, Inc. v. Busk, 135
S. Ct. 513 (2014). As a result, Hormel asks us to overturn
Tyson Foods. We conclude that the discussion in Tyson Foods
relating to compensating its employees for time spent donning
and doffing the required clothing and equipment at the plant at
the beginning and end of the day does not contravene Integrity
Staffing.
I
¶10 The parties stipulated to many facts, and the circuit
court also made numerous findings of fact following a bench
trial. None of the circuit court's findings of fact are clearly
erroneous. Here are the relevant facts.
¶11 The class consists of approximately 330 persons who
are or were hourly employees of Hormel at the Beloit canning
facility. We will refer to the class members as "the
employees."
¶12 Hormel is a multi-national food company incorporated
in Delaware and headquartered in Austin, Minnesota. The Union
agreed that Hormel is a fine employer with a quality record and
a history of producing good, safe food for customers around the
world.
5
No. 2014AP1880
¶13 Hormel's Beloit canning facility prepares, cooks,
cans, and ships a variety of "shelf stable" products including
Hormel Chili, Mary Kitchen Hash, and Chi-Chi's Salsa, primarily
for sale to consumers in retail stores. A "shelf stable"
product can be stored almost indefinitely and without
refrigeration.
¶14 The Beloit canning facility operates like an assembly
line. Raw ingredients enter at one end of the facility and are
stored in a cooler or dry storage. Products (which may consist
of meat and seasoning ingredients) are out in the open in about
one-half of the plant.
¶15 Employees grind and blanch the meat, and cook and can
the product. A sophisticated, high-temperature, heavy-pressure
process is used to make the product shelf stable. The product
is moved to areas designated for pickup to ship to distribution
centers or retailers.
¶16 Regulations promulgated by the United States
Department of Agriculture (USDA), the United States Food and
Drug Administration (FDA), and the federal Occupational Safety
and Health Administration (OSHA) govern Hormel's production
facilities. Products containing meat are regulated by the
United States Department of Agriculture Food Safety Inspection
Service. Products not containing meat are regulated by the
United States Food and Drug Administration. The federal
Occupational Safety and Health Administration regulates
workplace safety.
6
No. 2014AP1880
¶17 Federal regulations require Hormel to meet standards
of cleanliness, quality, and safety in its plant and products.
For example, the federal regulations require that persons
working with food protect against contamination of food by
maintaining hygienic practices like washing hands and wearing
clean outer garments. While the federal regulations set forth
performance standards, they generally do not require these
standards be satisfied in any particular manner.
¶18 Hormel has adopted Work Rules in an effort to meet
performance standards, maintain sanitation, and protect
employees and consumers. The Work Rules require that employees
wear certain clothing and equipment. If employees do not wear
the required clothing and equipment, the employees are subject
to discipline, up to discharge.
¶19 Specifically, Hormel's Work Rules require employees
wear Hormel-provided hard hats, hearing protection, and eye
protection. All exposed head and facial hair must be covered by
a hair net. Employees are to wear clean and sanitary footwear
at all times.5 Clothing is provided by Hormel and must be
changed daily or more often (as good sanitation practices
dictate) and shall not be worn outside the plant. Hormel leases
the clothes from Aramark, which picks up worn clothes, launders
them, and drops off clean clothes.
5
The shoes must be kept at the facility and are called
"captive shoes."
7
No. 2014AP1880
¶20 Hormel does not compensate employees for time spent
putting on or taking off (donning and doffing) the required
clothing and equipment at the beginning and end of the day.
¶21 The parties stipulated that the median time for
donning and doffing the required clothing and equipment at the
beginning and end of the day, washing hands, and walking to and
from the assigned work stations was 5.7 minutes per day, 28.5
minutes per week, or approximately 24 hours per year.6
¶22 The employees must "swipe in" between 1 and 29 minutes
before the scheduled start of their shift. The employees must
have their clothes changed, be swiped in, and be at their
6
This stipulation includes not just the time spent donning
and doffing the required clothing and equipment, but also time
spent washing hands and walking to and from workstations.
Nonetheless, under Wis. Admin. Code § DWD 272.12(1)(a)2., the
"workday" is defined as "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.'"
Because we hold that donning and doffing the required
clothing and equipment at the beginning and end of the day is
integral and indispensable to the employees' principal work
activity of food preparation, the donning and doffing is itself
a principal work activity. See IBP, Inc. v. Alvarez, 546 U.S.
21, 37 (2005) ("[W]e hold that any activity that is 'integral
and indispensable' to a 'principal activity' is itself a
'principal activity . . . .'"). As a result, the time spent
walking to or from workstations or washing hands occurs after
the employees' "workday" begins and is thus compensable. See
IBP, 546 U.S. at 37 ("Moreover, during a continuous workday, any
walking time that occurs after the beginning of the employee's
first principal activity and before the end of the employee's
last principal activity is . . . covered by the FLSA.").
8
No. 2014AP1880
workstations at their assigned start times or they will be
considered tardy. The employees are paid by Hormel beginning at
the scheduled start of their shift, not at the time of swiping
in.
¶23 As a result, the employees are not paid for the time
spent putting on their clothing and equipment before the
scheduled start of their shift. The employees are also not paid
for a 30-minute meal period. To leave the facility during the
30-minute meal period, the employees must doff their clothing
and equipment before leaving the facility and don their clothing
and equipment before returning to work.
¶24 Upon completion of the assigned duties for the day and
after being released from work, the employees must "swipe out"
and change back into their street clothes.
¶25 The employees are paid until they officially "swipe
out." Thereafter, the employees must change from their required
clothing and equipment into their street clothes. As a result,
the employees are not paid for the time spent taking off their
clothing and equipment after they swipe out.
¶26 In sum, the paid "workday" for employees at Hormel is
measured from the scheduled commencement of the shift to the
swipe out at the electronic clock after release by the
supervisor less 30 minutes for the employees' meal period.
¶27 The circuit court found, on the great weight of the
credible evidence, that putting on and taking off the clothing
and equipment required by Hormel at the beginning and end of the
day is integral and indispensable to the performance of the
9
No. 2014AP1880
employees' principal activities. According to the circuit
court, a close connection exists between the donning and
doffing; compliance with the federal regulations of the United
States Department of Agriculture, the Food and Drug
Administration, and Occupational Safety and Health
Administration; and the employees' principal activities,
producing canned food.
II
¶28 The standard of review applicable to the instant case
is oft stated and is as follows:
¶29 This court will not overturn factual findings of the
circuit court unless the findings are clearly erroneous.
Royster-Clark, Inc. v. Olsen's Mill, Inc., 2006 WI 46, ¶11, 290
Wis. 2d 264, 714 N.W.2d 530.
¶30 The appeal revolves around the interpretation and
application of Wis. Admin. Code § DWD 272.12. When interpreting
administrative regulations the court uses the same rules of
interpretation as it applies to statutes. Wis. DOR v. Menasha
Corp., 2008 WI 88, ¶45, 311 Wis. 2d 579, 754 N.W.2d 95.
Interpretation and application of a regulation is ordinarily a
question of law that this court determines independently of the
circuit court or court of appeals, but benefiting from the
analysis of the other courts. State v. Brown, 2006 WI 131, ¶18,
298 Wis. 2d 37, 725 N.W.2d 262.
¶31 To determine the meaning of a regulation, we turn
first to the text. Each word shall be interpreted so as to give
it meaning, and none shall be treated as superfluous. See In re
10
No. 2014AP1880
Guardianship of James D.K., 2006 WI 68, ¶16, 291 Wis. 2d 333,
718 N.W.2d 38. The context of the regulation and case law
interpreting the regulation are also considered.
¶32 The parties dispute whether a circuit court's findings
that an activity is integral and indispensable to the employees'
principal activities is a question of fact or a question of law.
If the question is one of fact, this court will not overturn the
factual findings of the circuit court unless the findings are
clearly erroneous. Wis. DOR, 311 Wis. 2d 579, ¶45. If the
question is one of law, this court decides the question
independently while benefiting from the analyses of the circuit
court and court of appeals. Wis. DOR, 311 Wis. 2d 579, ¶44;
Brown, 298 Wis. 2d 37, ¶18.
¶33 The Union raised the issue of the standard of review
in its response brief, relying on a treatise that states,
without citation, that "[w]hether an activity is characterized
as . . . 'an integral and indispensable part' of the employee's
principal activities (as distinguished from preliminary or
postliminary to those activities), is a question of fact to be
determined from all the circumstances."7
¶34 In reply, Hormel argued that the facts are undisputed
and the interpretation and application of the regulations to
undisputed facts is a question of law that the court decides
independently of the circuit court or court of appeals.
7
See Laurie E. Leader, Wages and Hours: Law & Practice
§ 6.03[7], at 6-30 (2015).
11
No. 2014AP1880
¶35 We need not decide this issue. Whether we examine the
questions certified as ones of fact or law, we conclude the
circuit court reached the correct decision.8
III
¶36 We examine first whether the time spent donning and
doffing Hormel's required clothing and equipment at the
beginning and end of the day is considered compensable work time
or non-compensable preliminary and postliminary activities under
Wis. Admin. Code § DWD 272.12(2)(e).
¶37 The Department of Workforce Development regulations
determining an employee's work hours are found in Wis. Admin.
Code § DWD 272.12.
8
In the circuit court, the parties also disagreed about the
burden of proof. The Union argued that it would have the burden
of proof to demonstrate that the acts at issue are "work," and
the burden would then shift to Hormel to demonstrate that the
acts are noncompensable. Hormel disagreed with the Union's
description of the burden of proof, although Hormel agreed that
it had the burden of proof on the application of the de minimis
doctrine.
The circuit court stated that the (undefined) burdens of
proof were on the respective parties by the greater weight of
the credible evidence. The circuit court viewed Hormel as
having the burden of proof on the application of the de minimis
doctrine.
In this court, neither party raises the issue of the
allocation of the burdens of proof. As a result, we do not
address the issue. See State v. Gracia, 2013 WI 15, ¶28 n.13,
345 Wis. 2d 488, 826 N.W.2d 87 (stating "we do not usually
address undeveloped arguments"). Regardless of the allocation
of the burdens of proof, we conclude the circuit court's
decision was correct.
12
No. 2014AP1880
¶38 Wisconsin Admin. Code § DWD 272.12(1)(a)1. provides
that an employee must be paid "for all time spent 'in physical
or mental exertion . . . controlled or required by the employer
and pursued necessarily and primarily for the benefit of the
employer's business.'"9
¶39 The parties agree that the donning and doffing are
physical or mental exertion; are required by Hormel; and are
pursued necessarily and primarily for the benefit of Hormel's
business.
¶40 Compensable time is defined in the regulations in
terms of a "workday." See Wis. Admin. Code § DWD 272.12(1)(a)2.
Workday is defined as 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.'"10
9
Wisconsin Admin. Code § DWD 272.12, titled "Interpretation
of hours worked," states in (1)(a)1.:
(1) Principles for determination of hours worked. (a)
General requirements of sections. 1. Employees subject
to the statutes must 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." 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."
10
Wisconsin Admin. Code § DWD 272.12(1)(a)2. states:
(continued)
13
No. 2014AP1880
¶41 This regulation leads us to the meaning of the phrase
"principal activity or activities" of the employee.
¶42 "[P]rincipal activities" is defined in Wis. Admin.
Code § DWD 272.12(2)(e) to include all activities that are "an
integral part of a principal activity." (Emphasis added.)
"Among the activities included as an integral part of the
principal activity are those closely related activities which
are indispensable to its performance."11 In other words, an
integral part of a principal activity includes activities that
are closely related to the principal activity and indispensable
to its performance.12
¶43 The regulation gives three examples of "what is meant
by an integral part of a principal activity" justifying
compensation for an employee. The third example relates to a
chemical plant worker who dons and doffs clothing and equipment.
This example seems closest to the facts of the instant case, and
'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 (emphasis added).
11
See Wis. Admin. Code § DWD 272.12(2)(e)c. (emphasis
added).
12
See Tyson Foods, 350 Wis. 2d 380, ¶26.
14
No. 2014AP1880
is therefore most helpful in deciding the instant case. Here
are the three examples in the regulations:
a. In connection with the operation of a lathe, an
employee will frequently, at the commencement of their
workday, oil, grease, or clean their machine, or
install a new cutting tool. Such activities are an
integral part of the principal activity, and are
included within such term.
b. In the case of a garment worker in a textile mill,
who is required to report 30 minutes before other
employees report to commence their principal
activities, and who during such 30 minutes distributes
clothing or parts of clothing at the workbenches of
other employees and gets machines in readiness for
operation by other employees, such activities are
among the principal activities of such employee. Such
preparatory activities are compensable under this
chapter.
c. Among the activities included as an integral part
of the principal activity are those closely related
activities which are indispensable to its performance.
If an employee in a chemical plant, for example,
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
15
No. 2014AP1880
ordinarily be regarded as integral parts of the
principal activity or activities.13
¶44 To determine whether the Hormel-required donning and
doffing are merely incidental preparatory and concluding
activities or are integral and indispensable to the employees'
primary activities, we examine the third example, which we shall
refer to as "the chemical plant example," and its interpretation
and application by the court of appeals in Weissman v. Tyson
Prepared Foods, Inc., 2013 WI App 109, 350 Wis. 2d 380, 838
N.W.2d 502. We shall refer to this case as the Tyson Foods
case.
¶45 The plaintiffs in Tyson Foods were employees of a meat
processing plant in Jefferson County, Wisconsin, operated by
Tyson Prepared Foods, Inc. Tyson Foods required its employees
to put on sanitary clothing and equipment before they began
13
This Wisconsin regulation is substantially similar to
federal regulations addressing the phrase "principal activity or
activities." Compare Wis. Admin. Code § DWD 272.12(2)(e) with
29 C.F.R. § 785.24 and 29 C.F.R. § 790.8(b)-(c). Specifically,
the federal regulations provide the exact same three examples
that § DWD 272.12(2)(e) provides to clarify when an activity is
an "integral part of a principal activity" for which employees
must receive compensation.
The history and purposes of the Fair Labor Standards Act,
federal regulations, Wisconsin law and regulations, and case law
interpreting the statutes and regulations are set forth at
length in prior cases and need not be repeated here. See, e.g.,
Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513, 516-
18 (2014); Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 875-76
(2014); Tyson Foods, 350 Wis. 2d 380, passim.
16
No. 2014AP1880
their duties for each shift and to take off these items at the
end of their shifts.14
¶46 The clothing and equipment involved in Tyson Foods are
very similar to those in the instant case: hair nets; beard
nets; frocks (a coat with snaps in front); vinyl gloves; vinyl
sleeves; lightweight hard hats; safety glasses; ear plugs; and
"captive shoes."15
¶47 In Tyson Foods, the court of appeals began its
analysis with Wis. Admin. Code § DWD 272.12(1)(a)1. and
determined that Tyson Foods controlled the employees' clothing
and equipment and that requiring employees to put on and take
off the required clothing and equipment primarily benefited the
employer.16 Although the court of appeals viewed this initial
inquiry as necessary, the court of appeals did not consider it
dispositive.17
¶48 The Tyson Foods court of appeals then turned its
inquiry to whether the period of contested compensation is
included as a "principal activity," as distinguished from
14
Tyson Foods, 350 Wis. 2d 380, ¶4.
15
Tyson Foods, 350 Wis. 2d 380, ¶4.
16
The court of appeals concluded that the donning and
doffing activities were required and controlled by Tyson Foods
and primarily benefited the employer, satisfying the initial
inquiry. Tyson Foods, 350 Wis. 2d 380, ¶¶17, 22.
17
Tyson Foods, 350 Wis. 2d 380, ¶¶17, 23.
17
No. 2014AP1880
"preparatory and concluding activities," under Wis. Admin. Code.
§ DWD 272.12(2)(e).18
¶49 The court of appeals concluded in Tyson Foods that the
donning and doffing are compensable because they are integral
and indispensable to the principal work activities of the
employees in manufacturing food.
¶50 The court of appeals in Tyson Foods relied primarily
on the chemical plant example set forth in Wis. Admin. Code
§ DWD 272.12(2)(e)(1)c. to analyze the issue. In this example,
as set forth in full above, a chemical plant employee is
entitled to compensation for time spent to don and doff
protective clothing and equipment at the employer's premises.
¶51 Comparing the chemical plant employees and the Tyson
Foods employees, the court of appeals determined that the
chemical plant example in the regulations is analogous to the
donning and doffing of the Tyson Foods clothing and equipment.19
¶52 In both the chemical plant example and Tyson Foods,
safety laws, rules of the employer, and the nature of the work
all require the employees to change clothes to do their
respective jobs in the chemical plant and at the Tyson Foods
processing plant.20 In the Tyson Foods case, there was no
serious dispute that Tyson Foods required employees to don most
18
Tyson Foods, 350 Wis. 2d 380, ¶23.
19
Tyson Foods, 350 Wis. 2d 380, ¶¶26, 28-29, 32, 37.
20
Tyson Foods, 350 Wis. 2d 380, ¶32.
18
No. 2014AP1880
if not all items to keep food from being contaminated, to
operate more efficiently, and to limit Tyson Foods' liability
for and costs associated with employees' injuries.21
¶53 Although Tyson Foods gave short shrift to the
undisputed fact that its employees were required to don most of
the clothing and equipment to protect the meat-consuming public
from unappealing or even health-threatening food, the court of
appeals did not. Certain of these items were worn at least in
part to prevent contamination of food.22 To the court of
appeals, "needing to avoid food contamination plainly adds to
the indispensability of the donning and doffing."23
¶54 The court of appeals concluded that donning and
doffing clothes and equipment in the Tyson Foods case was
indispensable for the safety of the employees and the safety of
the food they help produce.24 Thus, the time for donning and
doffing was compensable.
¶55 The Tyson Foods case presents essentially the same
fact situation as presented in the instant case.
¶56 Both Tyson Foods and Hormel operate food processing
plants in Wisconsin subject to the same Wisconsin laws. The
clothing and equipment requirements for employees of each
21
Tyson Foods, 350 Wis. 2d 380, ¶28.
22
Tyson Foods, 350 Wis. 2d 380, ¶4.
23
Tyson Foods, 350 Wis. 2d 380, ¶36.
24
Tyson Foods, 350 Wis. 2d 380, ¶31.
19
No. 2014AP1880
company are essentially the same. Likewise, the clothing and
equipment requirements for employees of each company serve
essentially the same purposes: the safety of the employees and
the safety of the food they help produce.
¶57 The testimony with regard to the purposes of Hormel's
Work Rules is similar to the undisputed facts in Tyson Foods.
¶58 The Corporate Manager of Regulatory Compliance at
Hormel testified that because Hormel's process is regulated both
by the Food and Drug Administration and United States Department
of Agriculture, Hormel employees are required "to be clean in a
manner to prevent product alteration or the general creation of
unsanitary type conditions."
¶59 When asked whether Hormel's clothing and equipment
requirements were to comply with federal regulations, the
Corporate Manager replied, "They are. . . . The government just
kind of gives us what they call performance standards you know,
hey, look, we know there's various means to the ends." The
required donning and doffing of the sanitary company clothing
and equipment at the Beloit facility is a "means to an end,"
complying with the federal regulations regarding food sanitation
and workplace safety.
¶60 Although several Hormel employees testified that they
could do their assigned job function at Hormel without the aid
of the donned and doffed items, Hormel's plant operation
required proper sanitation standards and protective equipment to
meet the federal regulations. Cleanliness and food safety are
"intrinsic element[s]" of preparing and canning food at the
20
No. 2014AP1880
Hormel canning facility. The clothing and equipment is integral
and indispensable to the performance to the employees' job
function (principal work activity) of preparing canned food.
See Wis. Admin. Code § DWD 272.12(e)1.c.
¶61 Hypothetically the Hormel employees may be able to do
their jobs in street clothes, however Hormel's Work Rules and
Hormel's need to comply with federal regulations have created a
tight connection between the donning and doffing and the
principal activities of the employees.
¶62 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. Putting on and taking off the required clothing and
equipment at the beginning and end of the day is tied directly
to the work the employees were hired to perform——food
production——and cannot be eliminated altogether without
degrading the sanitation of the food or the safety of the
employees.
¶63 The employees in Tyson Foods and in the instant case
were compelled by the nature of their jobs in food production to
change clothing and wear equipment to ensure food and employee
safety. The nature of the employees' work makes the employer's
requirement of putting on and taking off clothing and equipment
at the beginning and end of the day an integral part of the
employees' principal activity.
¶64 Hormel dismisses Tyson Foods, contending that the
Tyson Foods case "puts state law at odds with federal authority,
21
No. 2014AP1880
namely, with the United States Supreme Court holding" in a
recent decision, Integrity Staffing Solutions, Inc. v. Busk, 135
S. Ct. 513 (2014). As a result, Hormel urges us to overturn
Tyson Foods.
¶65 Integrity Staffing does not conflict with Tyson Foods.
Because the Wisconsin administrative regulations at issue here
are substantially similar to federal regulations, federal cases
may assist in our analysis. See Tyson Foods, 350 Wis. 2d 380,
¶44; see also State v. Gudenschwager, 191 Wis. 2d 431, 439, 529
N.W.2d 225 (1995).
¶66 In Integrity Staffing, one of the federal regulations
involved was substantially similar to Wis. Admin. Code § DWD
272.12(e); indeed the federal regulations use an illustration
substantially similar to the chemical plant example in the
Wisconsin regulations.25
¶67 The employees in Integrity Staffing worked in a
warehouse retrieving products from shelves and packaging the
products for delivery to Amazon.com customers.26 Integrity
Staffing's employees were required to undergo antitheft security
screening before leaving the warehouse each day.27 The question
presented to the United States Supreme Court was whether the
employees' time spent waiting to undergo and then undergoing the
25
See 29 C.F.R. § 790.8(c).
26
Integrity Staffing, 135 S. Ct. at 515.
27
Integrity Staffing, 135 S. Ct. at 515.
22
No. 2014AP1880
security screenings was compensable under the Fair Labor
Standards Act.
¶68 The federal court of appeals upheld the employees'
claim for compensation viewing the screenings as an integral and
indispensable part of the principal activity the employees were
employed to perform; the court viewed the screenings as
necessary to the employees' primary work as warehouse employees
and for Integrity Staffing's benefit.28 The United States
Supreme Court reversed the federal court of appeals.
¶69 Applying federal regulations substantially similar to
those at issue here, the United States Supreme Court held that
"an activity is integral and indispensable to the principal
activities that an employee is employed to perform——and thus
compensable under the [Fair Labor Standards Act]——if it is an
intrinsic element of those activities and one with which the
employee cannot dispense if he is to perform his principal
activities."29 According to the Integrity Staffing Court,
because the employer-required screenings were not tied to the
productive work the employees were employed to perform——
retrieving and packing products——and the screenings could have
been eliminated without affecting the employees' ability to
perform their principal activity of retrieving and packaging
28
Integrity Staffing, 135 S. Ct. at 516.
29
Integrity Staffing, 135 S. Ct. at 519.
23
No. 2014AP1880
products,30 the time spent waiting to undergo and undergoing
security screening was noncompensable.31
¶70 The reasoning in Integrity Staffing is not, as Hormel
argues, "squarely the opposite of the Court of Appeals'
reasoning in [Tyson Foods]." Rather, the reasoning in Integrity
Staffing is consistent with Tyson Foods. Nor is Integrity
Staffing inconsistent with prior federal precedent.32 Instead,
Integrity Staffing once again clarified that whether an activity
is integral and indispensable to an employee's principal
activities is answered by reference to the nature of the
employees' job duties. Simply put, the donning and doffing
cases are fact dependent.
¶71 Both Integrity Staffing and Tyson Foods support the
proposition that just because the employer requires employees to
perform an activity that benefits the employer does not
30
Integrity Staffing, 135 S. Ct. at 518.
31
Integrity Staffing, 135 S. Ct. at 519.
32
In Steiner v. Mitchell, 350 U.S. 247 (1956), the Court
held battery plant employees were entitled to compensation for
time spent showering and changing clothes because of the toxic
chemicals in the plant were "indispensable to the performance of
their productive work and integrally related thereto." Steiner,
350 U.S. at 249, 251. In a different case, the Court held that
meatpacker employees were entitled to compensation for time
spent sharpening their knives. See Mitchell v. King Packing
Co., 350 U.S. 260, 262-63 (1956). Conversely, in a third case,
the Supreme Court held the time spent waiting by poultry plant
employees to don protective equipment was noncompensable because
"such waiting . . . was two steps removed from the productive
activity on the assembly line . . . .'" IBP, Inc. v. Alvarez,
546 U.S. 21, 42 (2005) (emphasis added).
24
No. 2014AP1880
automatically render that activity integral and indispensable to
an employee's principal work activities, and thus compensable.
See Integrity Staffing, 135 S. Ct. at 519; Tyson Foods, 350
Wis. 2d 380, ¶26. 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.33
Integrity Staffing does not contradict Tyson Foods; Tyson Foods
remains good law.
¶72 Another recent United States Supreme Court decision,
Sandifer v. United States Steel Corp., 134 S. Ct. 870 (2014),
discusses the issue of compensation for donning and doffing.
¶73 In Sandifer, employees were required to wear special
clothing and protective equipment and devices because of the
hazards at steel plants.34 The statutory provision interpreted
in Sandifer was 29 U.S.C. § 203(o).35 Section 203(o) provides
that the compensability of time spent "changing clothes or
washing at the beginning or end of each workday" is a subject
33
Integrity Staffing, 135 S. Ct. at 519 ("[A]n activity is
integral and indispensable to the principal activities . . . if
it is an intrinsic element . . . with which the employee cannot
dispense if he is to perform his principal activities."); Tyson
Foods, 350 Wis. 2d 380, ¶26 ("An integral part of a principal
activity includes . . . an activity that is . . . indispensable
to its performance.").
34
Sandifer, 134 S. Ct. at 874.
35
Sandifer, 134 S. Ct. at 874.
25
No. 2014AP1880
appropriately committed to collective bargaining.36 U.S. Steel,
the defendant, contended that the provision in the collective
bargaining agreement rendering noncompensable the time spent
donning and doffing the special clothing and protective
equipment and devices was a valid provision under 29 U.S.C.
§ 203(o).37
¶74 According to the Sandifer Court, the exception for
collective bargaining agreements in 29 U.S.C. § 203(o) applies
only when "changing clothes" is "'an integral and indispensable
part of the principal activities for which covered workmen are
employed.'"38 U.S. Steel did not dispute the Seventh Circuit's
conclusion that were it not for 29 U.S.C. § 203(o) and the
collective bargaining agreement, the time spent donning and
doffing the special clothing and protective equipment and
devices would have been integral and indispensable to the
principal activities for which the employees were employed.39
Thus, the time would have been compensable.
¶75 Analyzing dictionary definitions of the statutory
terms "change" and "clothes," the Sandifer Court concluded the
time spent putting on and taking off the special clothing and
36
29 U.S.C. § 203(o) (emphasis added).
37
Sandifer, 134 S. Ct. at 874.
38
Sandifer, 134 S. Ct. at 877 (quoting Steiner v. Mitchell,
350 U.S. 247, 256 (1956)).
39
Sandifer, 134 S. Ct. at 876 (quoting Sandifer v. U.S.
Steel Corp., 678 F.3d 590, 596 (7th Cir. 2012)).
26
No. 2014AP1880
protective equipment and devices was, on the whole, time spent
"changing clothes" under 29 U.S.C. § 203(o).40 As a result, the
time spent donning and doffing was not compensable under 29
U.S.C. § 203(o) and the collective bargaining agreement.41
¶76 No counterpart to 29 U.S.C. § 203(o) exists in
Wisconsin law. Although the clothing and protective equipment
and devices at issue in Sandifer were more specialized than
those at issue in the instant case, the Sandifer case supports
the conclusion that the clothing and equipment at issue in the
instant case is integral and indispensable to the employees'
principal work activities.
¶77 Moreover, although Hormel and the Union have entered
into a collective bargaining agreement, the agreement does not
speak to the compensability of time spent donning and doffing
the required clothing and equipment.
¶78 Applying Tyson Foods, Integrity Staffing, and
Sandifer, we 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. Accordingly, we affirm
the circuit court's judgment and order that the employees should
be compensated for the 5.7 minutes per day spent donning and
40
Sandifer, 134 S. Ct. at 876-79.
41
Sandifer, 134 S. Ct. at 879.
27
No. 2014AP1880
doffing the required clothing and equipment at the beginning and
end of the day under Wis. Admin. Code § DWD 272.12.
IV
¶79 We next examine whether the time spent donning and
doffing Hormel's required clothing and equipment during meal
periods is considered compensable work time.
¶80 Hormel does not pay the employees for their 30-minute
meal period.
¶81 In the circuit court, the Union argued that the unpaid
meal periods were compensable under two regulations. First,
Wis. Admin. Code § DWD 272.12(2)(c), which applies to "[r]est
and meal periods." Second, Wis. Admin. Code § DWD 274.02(3),
which provides the test for when a meal period is "on-duty," and
thus counted as compensable work time.42
¶82 We will address the applicable regulations, Wis.
Admin. Code §§ DWD 272.12(2)(c) and 274.02(3), in turn.
¶83 First, Wis. Admin. Code § DWD 272.12(2)(c)2. provides
that "[b]ona fide meal periods of 30 minutes or more are not
42
Although the concurrence/dissent concludes that the
unpaid meal periods are not compensable, the concurrence/dissent
cites only one of these regulations, Wis. Admin. Code § DWD
274.02(3). See concurrence/dissent, ¶119 n.8. Instead, the
concurrence/dissent analyzes whether leaving the facility during
a meal period is a "principal activity" under Wis. Admin. Code
§ DWD 272.12(2)(e). See concurrence/dissent, ¶¶122-124.
The "principal activity" analysis under Wis. Admin. Code
§ DWD 272.12(2)(e) applies to "[p]reparatory and concluding
activities." Meal periods are not generally viewed as
"[p]reparatory and concluding activities."
28
No. 2014AP1880
work time. . . . The employee must be completely relieved from
duty for the purposes of eating regular meals. . . . The
employee is not relieved if they are required to perform any
duties, whether active or inactive, while eating."
¶84 Second, Wis. Admin Code § DWD 274.02(3) states that
"[t]he employer shall pay all employees for on-duty meal
periods, which are to be counted as work time. An on-duty meal
period is a meal period where the employer does not provide at
least 30 minutes free from work. Any meal period where the
employee is not free to leave the premises of the employer will
also be considered an on-duty meal period."
¶85 The circuit court declared that the required donning
and doffing of clothing and equipment to leave the Hormel plant
during the 30-minute meal periods denied employees a bona fide
30-minute meal period in violation of Wisconsin law.
Nevertheless, the circuit court refused to award damages for
employees who remained on site during the meal period. The
circuit court did not adopt the Union's position that the
employees were to be reimbursed for the alleged lost 30-minute
meal break when the employees did not leave the premises but
simply sat in the lunch room for 30 minutes and ate their meal.
29
No. 2014AP1880
The circuit court labeled the Union's contention far too broad
in its scope and found it was unsupported by credible evidence.43
¶86 As the circuit court acknowledged, "evidence about the
lunch period was sparse." The circuit court apparently agreed
with Hormel's position that even if liability were found for the
unpaid meal period, damages could be awarded only to the
employees who left the premises during the meals period. The
circuit court accepted the evidence that 1% of the employees
donned and doffed the clothing and equipment and left the
premises for meals. The parties stipulated that if the circuit
court accepted the 1% evidence, the damages on the unpaid meal
period claim would be $15,000.
¶87 The parties explained in the stipulation that the
stipulation was entered to limit the issues and expedite the
trial. Neither party took any opportunity at the circuit court
or thereafter to challenge the circuit court's $15,000 damage
award.
¶88 In this court, neither Hormel nor the Union made any
arguments specifically regarding the compensability of the
43
The Union argued that because Hormel's work rules
required the employees to don and doff their clothing and
equipment to leave the facility during their meal periods, the
vast majority of employees chose to remain on site during their
meal periods. The circuit court referred to this as the Union's
"chilling effect" argument, and concluded it was unsupported by
any credible evidence. If the circuit court had accepted the
Union's "chilling effect" argument, damages would have been
about $1.5 million.
30
No. 2014AP1880
unpaid meal periods. They merely discussed the meal periods in
stating the background of the dispute.
¶89 Hormel's counsel never discussed the compensability of
the unpaid meal periods in his briefs to the court of appeals or
this court or in oral argument.
¶90 As the concurrence/dissent points out, the Union's
counsel did responded to several questions from the court at
oral argument regarding the compensability of unpaid meal
periods. However, the Union's counsel did not, as the
concurrence/dissent contends, "renew" any claim for compensation
for unpaid meal periods aside from defending the circuit court's
$15,000 damage award for the 1% of the employees who left the
premises for meals.44 As the excerpts of oral argument quoted in
the concurrence/dissent show, the Union's counsel was "not
asking for pay for the other 99%" of the employees.45
¶91 Instead, Hormel's and the Union's arguments to both
this court and the court of appeals addressed only the circuit
court's determination that 5.7 minutes spent per day donning
and doffing the required clothing and equipment is "integral and
indispensable" to the employees' principal work activities of
food production.
¶92 As explained previously, we affirm the circuit court's
conclusion that the 5.7 minutes spent per day donning and
44
See concurrence/dissent, ¶119.
45
Concurrence/dissent, ¶120.
31
No. 2014AP1880
doffing the required clothing and equipment is integral and
indispensable to the employees' principal work activities.
¶93 We do not affirm the circuit court's declaration that
the required donning and doffing of clothing and equipment to
leave the Hormel plant during the 30-minute meal periods denied
employees a bona fide 30-minute meal period in violation of
Wisconsin law. We accept the $15,000 damage award because the
parties accepted it and have not disputed it in this court.46
¶94 The circuit court's awarding $15,000 based on the
parties' stipulation appears to be an attempt by the circuit
court and the parties to efficiently resolve this dispute
without a definitive ruling on the meal period. The parties
were trying to limit the issues and expedite the trial on the
issue of donning and doffing the Hormel-required clothing and
equipment at the beginning and end of the day. In the absence
of evidence and argument, we, like the circuit court, will not
disturb the $15,000 accommodation between the parties.
V
¶95 Having determined that the donning and doffing at the
beginning and end of the day is integral and indispensable to
the employees' principal activities in producing food products,
we next address whether this time is non-compensable under the
46
See Maurin v. Hall, 2004 WI 100, ¶120, 274 Wis. 2d 28,
682 N.W.2d 866 (Abrahamson, C.J., & Crooks, J., concurring)
("The rule of law is generally best developed when matters are
tested by the fire of adversarial briefs and oral argument),
overruled on other grounds by Bartholomew v. Wis. Patients Comp.
Fund, 2006 WI 91, 293 Wis. 2d 38, 717 N.W.2d 21632
No. 2014AP1880
doctrine of de minimis non curat lex (the law does not concern
itself with trifles).
¶96 The circuit court and Hormel viewed Hormel as having
the burden of proof on the issue of the de minimis non curat lex
doctrine. The circuit court determined that "Hormel has failed
to carry its burden to show the applicability of the de minimis
doctrine, and, therefore, that doctrine is not controlling
(assuming it exists at all in Wisconsin law)."
¶97 The de minimis non curat lex 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.'" Singh v. City of New
York, 524 F.3d 361, 370 (2d Cir. 2008) (quoting Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 692 (1946)).47
¶98 Assuming, without deciding, that the de minimis
doctrine is applicable to claims under Wis. Admin. Code § DWD
272.12, we conclude that in the instant case, the de minimis
doctrine does not bar compensation for the time spent donning
and doffing the required clothing and equipment because the time
spent donning and doffing is not a "trifle."
47
The Sandifer court remarked (in the context of 29 U.S.C.
§ 209(o)) that "[a] de minimis doctrine does not fit comfortably
within the statute at issue here, which, it can fairly be said,
is all about trifles——the relatively insignificant periods of
time in which employees wash up and put on various items of
clothing needed for their jobs." Sandifer, 134 S. Ct. at 880.
33
No. 2014AP1880
¶99 Although the de minimis non curat lex doctrine is an
established feature of the Federal Fair Labor Standards Act,48 no
Wisconsin cases, statutes, or regulations state that the de
minimis doctrine applies to Wisconsin DWD regulations or in
employment disputes. Wisconsin courts have, however, applied
the doctrine in other unrelated contexts. See, e.g., Town of
Delevan v. City of Delevan, 176 Wis. 2d 516, 532, 500 N.W.2d 268(1993) (annexation); Waupaca Cnty. v. Bax, No. 2009AP1406,
unpublished slip op. (Wis. Ct. App. Jan. 28, 2010) (zoning).
¶100 Despite the lack of Wisconsin case law or state
statutory guidance with regard to the de minimis doctrine in the
instant case, a review of federal case law assists in reaching
our conclusions.
¶101 As Hormel noted, the United States Supreme Court first
applied the maxim of de minimis non curat lex as a possible
defense to disputes originating under the Federal Labor
Standards Act in Anderson v. Mt. Clemens Pottery Co., 328 U.S.
680 (1946). The United States Supreme Court stated that
overtime compensation that concerns "only a few seconds or
minutes of work" may be disregarded as de minimis, reasoning
that "[s]plit-second absurdities are not justified by the
actualities of working conditions or by the policy of the Fair
Labor Standards Act." Anderson, 328 U.S. at 692. The de
minimis doctrine appears in the federal regulations. See 29
48
Tyson Foods, 350 Wis. 2d 380, ¶51.
34
No. 2014AP1880
C.F.R. § 785.47. In contrast to federal law, the de minimis
doctrine has no explicit basis in the Wisconsin statutes or
Wisconsin regulations in the instant case.
¶102 In the instant case, employees spend approximately 24
hours per year donning and doffing. 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. We agree with the circuit court
that in the instant case this time is not a "trifle."
¶103 Hormel's primary reliance on Mitchell v. JCG
Industries, Inc., 745 F.3d 837 (7th Cir. 2014), is misplaced.
In Mitchell, the Seventh Circuit held the de minimis doctrine
applicable to donning and doffing during a meal break.
Mitchell, 745 F.3d at 841-42. After discussing the parties'
disagreement regarding the amount of time spent donning and
doffing equipment, the federal court of appeals quoted the
Supreme Court in Sandifer v. U.S. Steel Corp., 134 S. Ct. 870,
881 (2014), that "it is most unlikely Congress meant § 203(o) to
convert federal judges into time-study professionals."
Mitchell, 745 F.3d at 843 (quoting Sandifer, 134 S. Ct. at 881).
Thus, the Seventh Circuit held that under the de minimis
doctrine, it was better to leave to collective bargaining,
rather than judicial determination, the issue of how much time
was spent donning and doffing equipment on different days.
Mitchell, 745 F.3d at 843.
¶104 Here, Hormel and the Union stipulated to the donning
and doffing period in question at the beginning and end of the
35
No. 2014AP1880
day: 5.7 minutes per day, 28.5 minutes per week, approximately
24 hours per year. As a result, in the instant case the court
need not be a "time-study professional" to determine the time
spent donning and doffing the clothing and equipment.
¶105 Assuming, without deciding, that the de minimis
doctrine applies to claims arising under Wis. Admin. Code § DWD
272.12, the de minimis doctrine does not bar compensation for
the time spent donning and doffing the required clothing and
equipment at the beginning and end of the day because the time
spent donning and doffing is not a "trifle." The donning and
doffing of the clothing and equipment at the beginning and end
of the day is integral and indispensable to the employees'
principal activity——to successfully and sanitarily produce
Hormel's products. Viewed in the aggregate, this time amounts
to over $500 per year for each employee, a figure that is
certainly significant to an employee and to Hormel.
Accordingly, we conclude that the period spent donning and
doffing at the beginning and end of the day is compensable under
Wis. Admin. Code § DWD 272.12 and affirm the judgment and order
of the circuit court.
¶106 For the reasons set forth, we conclude:
(1) Wisconsin Admin. Code § DWD 272.12 requires
Hormel to compensate its employees for the 5.7
minutes per day spent donning and doffing the
clothing and equipment at the beginning and end
of the day. Relying on Tyson Foods, 350 Wis. 2d
380, as did the circuit court, we conclude, as
36
No. 2014AP1880
did the circuit court, that the 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 to sanitation and
safety in the employees' principal activities,
namely food production.
(2) The required donning and doffing of clothing and
equipment at the beginning and end of the day
does not fall within the doctrine of de minimis
non curat lex. The wages involved are not a
"trifle" either for the employees or Hormel.
By the Court.-The judgment and order of the circuit court
is affirmed.
¶107 REBECCA G. BRADLEY, J., did not participate.
37
No. 2014AP1880.pdr
¶108 PATIENCE DRAKE ROGGENSACK, C.J. (concurring in part,
dissenting in part). While I do not join the lead opinion,1 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" of Hormel
Foods Corporation for which compensation is required.2 I also
agree that under the facts of this case Hormel is not relieved
of its obligation to compensate for 5.7 minutes per day for
those tasks by the de minimis rule.3
¶109 I dissent from the lead opinion because I conclude
that Hormel is not required to further compensate its employees
due to doffing and donning by employees who choose to leave the
workplace 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 Wis. Admin. Code
§ DWD 272.12(2)(e)1. (2009), and serves only employees'
interests. I also dissent because I would cabin the time for
which compensation is due each employee at 5.7 minutes per
workday. That is the total time presented to us as a
stipulation by the parties for an employee to accomplish donning
and doffing at the beginning and end of a workday. If the time
allocated for donning and doffing were not cabined at a
1
The lead opinion represents the decision of two justices:
Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley.
2
Lead op., ¶7.
3
Id. at ¶8.
1
No. 2014AP1880.pdr
specified number of minutes per employee per workday, the de
minimis rule would preclude compensation because keeping
accurate payroll records of the varying time that each employee
spends donning and doffing on each workday would appear to be a
nearly impossible administrative task for Hormel. Cabining the
time at a specified number of minutes per employee per workday
for which compensation is due was the mode employed in prior
contracts between Hormel and the Union for those tasks.
Accordingly, I respectfully concur in part and dissent in part
from the lead opinion.
I. BACKGROUND
¶110 The lead opinion ably sets out facts as presented by
the parties, who do not dispute what occurred on a factual
basis. I repeat only a few facts here to draw the reader into
the discussion that follows.
¶111 This is a wage and hour claim against Hormel, whose
business is food production. Hormel's Beloit plant has
assembly-line food preparation where raw materials enter the
facility and move through a production-line process where meat,
seasonings and other ingredients are ground, chopped and
prepared for cooking and canning. During part of the food
preparation, product ingredients are in open containers as
employees work to prepare and cook various raw materials. The
production process of food products ends when high temperature,
heavy pressure canning occurs.
¶112 The claim here arises because Hormel requires
employees to wear Hormel-provided clothing, "whites," and
2
No. 2014AP1880.pdr
protective gear, such as glasses, hair and beard nets, and hard
hats, while working and to remove the whites and gear before
they leave Hormel's facility.4 When employees choose to leave
Hormel's facility during the 30-minute lunch break, they are
required to doff their whites and gear and to don them again
before they return to food preparation.
¶113 Hormel is not currently compensating employees for
donning and doffing. However, in an earlier union contract,
Hormel compensated employees 12 minutes per day for these tasks.5
During subsequent contract negotiations, the Union bargained
away this compensation provision.6
¶114 The parties stipulated that 5.7 minutes is the total
average time per day an employee requires to don and doff whites
and gear at the beginning and end of the workday. The questions
presented to us are four-fold: (1) whether donning and doffing
of clothing and gear that Hormel requires employees to put on at
the start of the workday and remove before they leave the
workplace is time worked for which compensation is due under
4
For convenience, I refer to the clothing provided by
Hormel as "whites," even though some employees are required to
wear clothing that is blue in color.
5
The record reflects that in the 1980s employees were
compensated 12 minutes per day for donning and doffing under the
then union contract.
6
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. United States Steel Corp., 134 S. Ct. 870, 878-79 (2014).
3
No. 2014AP1880.pdr
Wisconsin law; (2) whether doffing and donning of clothing and
equipment that occurs when employees choose to leave during the
30-minute lunch break is time worked for which compensation is
due under Wisconsin law; (3) whether Hormel is relieved from
compensating its employees for donning and doffing by the de
minimis rule; and (4) if the de minimis rule does not apply,
what is the amount of time for which compensation is due for
past, and will be due for future, donning and doffing.
II. DISCUSSION
A. Standard of Review
¶115 To decide the questions presented, we must interpret
Wisconsin Administrative Code provisions, most specifically,
Wis. Admin. Code § DWD 272.12(2)(e)1., as it drives the
determination of "hours worked" by Hormel employees. In that
regard, whether donning and doffing are "an integral part of a
principal activity" of the employer within the meaning of § DWD
272.12(2)(e)1. is a question of law that we review
independently. DaimlerChrysler v. LIRC, 2007 WI 15, ¶10, 299
Wis. 2d 1, 727 N.W.2d 311.
¶116 If Wis. Admin. Code § DWD 272.12(2)(e)1. applies to
donning and doffing, whether the de minimis rule nevertheless
precludes Hormel employees' recovery for otherwise compensable
time is also a question of law for our independent review.
Lindow v. United States, 738 F.2d 1057, 1062 (9th Cir. 1984).
4
No. 2014AP1880.pdr
B. Section DWD 272.12(2)(e)1.
1. Beginning and end of workday
¶117 If donning and doffing come within Wis. Admin. Code
§ DWD 272.12(2)(e)1., those tasks are part of the hours worked
for which compensation is due because they are part of the
"Workday." § DWD 272.12(1)(a)2. I agree with the lead
opinion's conclusion that § DWD 272.12(2)(e)1. requires Hormel
to compensate its employees for 5.7 minutes per day that have
been cabined for donning and doffing clothing and equipment at
the beginning and end of the workday.7 I agree because a
principal activity of Hormel is sanitary food production and
Hormel's requirement that employees wear clean whites, hair
nets, beard nets and other equipment designed to keep foreign
objects out of the food is an integral part of the production of
sanitary food. See § DWD 272.12(2)(e)1.c. As the court of
appeals correctly reasoned in regard to Weissman's claim for
donning required clothing and gear at the start of the workday
and doffing at day's conclusion, "donning and doffing here
constitute 'preparatory and concluding' activities that are 'an
integral part of a principal activity'" of the employer, again
sanitary food production. Weissman v. Tyson Prepared Foods,
Inc., 2013 WI App 109, ¶2, 350 Wis. 2d 380, 838 N.W.2d 502.
2. Lunch break
¶118 The circuit court granted compensation for doffing and
donning clothing and gear for those employees who chose to leave
7
See lead op., ¶7.
5
No. 2014AP1880.pdr
Hormel's facility during their lunch break. The Union had asked
for 30 minutes of additional compensation because it claimed
that doffing and donning in order to leave the workplace during
lunch break caused the break to be less than 30 minutes long and
therefore compensation for the full 30 minutes was due.
¶119 Before us, the Union renews its claim that
compensation is due for an additional 30 minutes because the
time required for doffing and donning that occurs when employees
choose to leave the workplace reduces the lunch break to less
than 30 minutes, the minimum time required for an unpaid break.8
The lead opinion affirms the circuit court, and ducks the
question presented about the compensability of the doffing and
donning during the lunch break by asserting, "neither Hormel nor
the Union made any arguments specifically regarding the
compensability of the unpaid meal periods."9
¶120 The lead opinion minimizes what occurred at oral
argument before us. For example, the following questions were
asked and answered:
CHIEF JUSTICE ROGGENSACK: Part of your brief was
people wanting to leave the workplace for 30 minutes,
and in order to do so they have to take off the
clothes that they're required to put on when they go
out to lunch and put them back on again when they come
in from lunch, correct?
UNION COUNSEL: Yes.
8
See Wis. Admin. Code § DWD 274.02(3) (2013).
9
Lead op., ¶88.
6
No. 2014AP1880.pdr
CHIEF JUSTICE ROGGENSACK: Are you asking for
compensation for that in addition to the beginning of
the workday and the end of the workday for anybody who
leaves the place of employment?
UNION COUNSEL: Well the trial court looked at that
and the regulations again are clear. That if there is
not a 30 minute uninterrupted break, it has to be paid
for. So the issue is, since people are required to don
before they leave the plant and doff before they, when
they come back, they are actually getting less than a
30-minute lunch.
CHIEF JUSTICE ROGGENSACK: Okay so the answer to my
question is "yes?"
UNION COUNSEL: They should be paid for the lunchtime.
And the court found that approximately 1% of the
workers do that. So we're not asking for pay for the
other 99%.
. . . .
JUSTICE A.W. BRADLEY: I'm focusing on the lunch hour,
the 30 minutes. Our opinions have to make sense
. . . . This doesn't make sense to me. If we would
agree with the trial court that the donning and
doffing for some employees who do this over the 30-
minute lunch hour should be compensable, what, doesn't
that provide an incentive for . . . more, maybe all of
the employees to say "oh let's get time and a half,
let's put on and take off over the 30-minute lunch
hour?" That doesn't make sense to me. It sounds like
it will be giving a rather perverse incentive. Now,
so tell me why it does make sense. Tell me why, since
it only affects a few, according to the record, a few
employees, that shouldn't be considered de minimis. So
you've got two questions there.
UNION COUNSEL: Well, again, it's only if, just
factually, if you're leaving the plant that you're
entitled to that pay. [Justice A.W. Bradley
interjects]. I think the exact same test is being
applied. So, if you find that donning and doffing the
clothes is compensable in the morning and in the
afternoon where employers are required because it is
integral and indispensable, the exact same argument
makes exact same sense because of the regulation that
requires a bona fide meal period of 30 minutes. So
7
No. 2014AP1880.pdr
Hormel would be required to allow employees to take a
full 30-minute lunch, which includes being able to don
first, then leave the plant, then come back 30 minutes
later, and then——or doff first——and then don on the
way back in.
JUSTICE A.W. BRADLEY: So you're not really responding
to my concern about the potential for gaming the law?
UNION COUNSEL: I don't see how it's gaming because
the legislature has said that the Department of
Workforce Development has to pass these regulations,
and they have. They've said that everyone is entitled
to a 30-minute bona fide meal period.
. . . .
JUSTICE ABRAHAMSON: Does the 5.7 minutes include the
initial putting them on and the final taking them off
and the lunch hour donning and doffing?
UNION COUNSEL: No.
JUSTICE ABRAHAMSON: So it only deals with putting
them on to begin with and taking them off, right?
UNION COUNSEL: Right.
JUSTICE ABRAHAMSON: But the trial court order says
. . . that the class members have been denied the
right to 30 minutes off duty to leave the premises and
the doffing and donning clothes and gear during such
30 minutes violates the class members. So the
declaratory judgment is that's a violation.
UNION COUNSEL: Right . . . yes.
¶121 I conclude the reasoning that supports the conclusion
that donning and doffing at the beginning and end of the workday
are "an integral part of a principal activity" of Hormel and
therefore require compensation does not support compensation for
doffing and donning when employees choose to leave Hormel's
facility during their lunch break, nor does it support 30
minutes more pay because time required to doff and don reduces
the lunch break below 30 minutes.
8
No. 2014AP1880.pdr
¶122 First, no interest or activity of Hormel is served by
employees leaving its facility during lunch break. Stated
otherwise, leaving Hormel's facility at lunch does not aid in
sanitary food production, which is a principal activity of
Hormel. Second, the choice to leave Hormel's facility at lunch
is totally each individual employee's choice, not Hormel's.
¶123 Wisconsin Admin. Code § DWD 272.12(2)(e)1. is directed
at "a principal activity" of the employer, Hormel. It is § DWD
272.12(2)(e)1. that drives the obligation to compensate
employees for the initial donning and final doffing of whites
and gear. Section DWD 272.12(2)(e)1. is not directed at
principal activities of employees. However, leaving the
workplace during lunch break is driven by principal activities
of employees, i.e., employees choose to leave to further their
own interests. Furthermore, approximately 1% of employees
choose to leave during lunch break. With 99% of employees not
undertaking an activity, that activity cannot reasonably be
contended to constitute a "principal activity" of the employer.
Instead, the 1% of employees is furthering their own principal
activity, i.e., their choice to leave for lunch. Section DWD
272.12(2)(e)1. does not require compensation for principal
activities of employees.
¶124 And finally, while employees are free to leave the
workplace during lunch break, it is their personal and voluntary
choice that causes them to leave Hormel's facility. Their
leaving serves no interest of Hormel. Accordingly, I conclude
that Hormel is not required to compensate employees who leave
9
No. 2014AP1880.pdr
the workplace for their entire lunch break, as the Union
requests, or for a portion thereof, as the circuit court
ordered. Therefore, I would reverse the order of the circuit
court in regard to payment for lunchtime doffing and donning,
which order the lead opinion does not overturn.10
C. De Minimis Rule
¶125 Hormel contends that all donning and doffing should
fall outside of its obligation to provide compensation because
of the de minimis rule. The lead opinion concludes that donning
and doffing at the beginning and end of the workday are not de
minimis, assuming that the de minimis rule may be applied to the
Union's claims.11 The lead opinion does not discuss whether the
de minimis rule may be applied to doffing and donning by those
employees who choose to leave during their lunch break.
¶126 The United States Supreme Court discussed application
of the de minimis rule in regard to a federal wage and hour
claim in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680(1946). There, the Court said that work "pursued necessarily
and primarily for the benefit of the employer and his business"
and rightly included in "the statutory workweek" may
nevertheless go without payment if it is de minimis. Id. at
691-92 (citation omitted).
10
Because four justices, Chief Justice Roggensack, Justice
Prosser, Justice Ziegler and Justice Gableman, conclude that no
compensation is due for doffing and donning during lunch break,
the order of the circuit court is reversed in regard to the
$15,000 payment that the circuit court ordered.
11
Id., ¶¶8, 98.
10
No. 2014AP1880.pdr
¶127 To determine whether the de minimis rule applies in a
particular context, one must consider whether the factual
predicates for the rule's application are met. In Lindow, the
Ninth Circuit Court of Appeals carefully explained a test that
it applied when considering whether compensation is excused that
otherwise would be due because the work is de minimis. There,
employees of the Army Corps of Engineers (Corps) sought overtime
compensation for the Corps' requirement that they report to work
15 minutes before the start of their scheduled shifts to perform
certain tasks that took part of the required 15 minutes.
Lindow, 738 F.2d at 1059.
¶128 Lindow explained that the "de minimis rule is
concerned with the practical administrative difficulty of
recording small amounts of time for payroll purposes." Id. at
1062. The court reasoned that keeping accurate track of
varying, small amounts of time for many employees could be an
overwhelming task for employers. Id. at 1063 (citing Veech &
Moon, De Minimis Non Curat Lex, 45 Mich. L. Rev. 537, 551 (1947)
and its conclusion that Anderson was concerned with "just plain
everyday practicality").
¶129 Lindow also explained that an "important factor in
determining whether a claim is de minimis is the amount of daily
time spent on the additional work[,] . . . [although n]o rigid
rule can be applied with mathematical certainty." Id. at 1062
(citing Frank v. Wilson & Co., 172 F.2d 712, 716 (7th Cir. 1949)
and Nardone v. Gen. Motors, Inc., 207 F. Supp. 336, 341 (D.N.J.
1962)). Further, the court considered the "size of the
11
No. 2014AP1880.pdr
aggregate claim" for those claims where time expended may have
been minimal on a daily basis. Id. at 1063. And finally,
Lindow noted that "in applying the de minimis rule, we will
consider whether the claimants performed the work on a regular
basis." Id. (citing Smith v. Cleveland Pneumatic Tool, Co., 173
F.2d 775, 776 (6th Cir. 1949), as applying de minimis rule where
unpaid work did not occur on a daily basis).
¶130 I adopt and apply the Lindow test, summarizing it as
follows: (1) the time at issue must be otherwise compensable by
the employer and (2) consideration must be given to (a) the
practical, administrative difficulty of accurately recording
small amounts of additional time that may vary from employee to
employee, (b) the regularity on which additional work is
performed, (c) the time spent each day on additional work, and
(d) the size of the aggregate claim for additional compensation.
Id. at 1062-63.
¶131 In the case now before us, unless the de minimis rule
applies, the cabined 5.7 minutes per day for donning whites and
required gear at the beginning of the workday and doffing at the
end of the workday is compensable because it is integral to a
principal activity of Hormel. Weissman, 350 Wis. 2d 380, ¶2.
However, because doffing and donning by those employees who
choose to leave during lunch break is not compensable, the de
minimis rule has no application there. Anderson, 328 U.S. at
691-92; Lindow, 738 F.2d at 1063.
¶132 As I apply the Lindow test to determine whether the de
minimis rule eliminates Hormel's obligation for compensation of
12
No. 2014AP1880.pdr
the stipulated total time of 5.7 minutes per day for donning at
the beginning of the workday and doffing at the end of the
workday, I note that if Hormel were required to record for
payroll purposes the varying amounts of time that each
individual employee expends to don and doff at the beginning and
end of each workday, it would appear to be almost an
administrative impossibility to do so accurately. Furthermore,
imposing such an obligation on Hormel could lead to an unending
series of wage and hour claims by employees who contend that
Hormel did not record the correct amount of time on particular
days for particular employees. Stated otherwise, if the total
time per day that is due for donning and doffing were not
cabined at a stipulated amount, all donning and doffing would be
precluded by the de minimis rule.
¶133 Other courts have used the de minimis rule to
eliminate otherwise compensable time that was too burdensome to
record accurately. See Mitchell v. JCG Indus., Inc., 745 F.3d
837, 843 (7th Cir. 2014) (precluding an obligation to record
small, varying amounts of time for payroll purposes in part
because it would turn judges into "time-study professionals"
when complaints about accuracy of recording were made).
¶134 However, as the claim is presented to us, the Union
and Hormel have cabined the total time taken to don and doff at
the beginning and end of a workday at 5.7 minutes per employee.
In addition, the Union has not requested that we impose an
obligation on Hormel to record for payroll purposes the actual
time spent by each employee on each day.
13
No. 2014AP1880.pdr
¶135 The Union's approach of seeking recovery for an agreed
amount of compensable time on a daily basis is consistent with
the approach the Union took when donning and doffing were
accorded in collective bargaining.12 It also frees Hormel from
what would be a near administrative impossibility to do
accurately.
¶136 I note that the tasks for which compensation is
required occur on a daily basis for each employee engaged in
food preparation. In addition, although 5.7 minutes per day is
a small amount of time, because it is expended every day, the
aggregate amount of each employee's claim per year is $500,
which is significant. It is also significant to Hormel as an
aggregate amount for all food preparation employees.
¶137 Accordingly, I conclude that in the context presented
by the case at hand, 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 at the
start of the workday and doffs them at the day's conclusion.
D. Cabining Time Allotted
¶138 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. This is so because without cabining the time at a
specified number of minutes per employee per day for which
compensation is due, the entire claim would be precluded by the
12
See note 5, supra.
14
No. 2014AP1880.pdr
near impossibility of Hormel's accurately recording small,
varying amounts of time for payroll purposes for each employee.
However, with compensable time cabined at a stipulated amount,
Hormel knows what compensation is due for past work. Hormel
also can choose to compensate through shortening future workdays
by 5.7 minutes so that it is not put in the position of
exceeding a 40-hour work week in the future. Accordingly,
cabining the time allotted for which compensation is due is
necessary to my decision to agree with the lead opinion in part.
III. CONCLUSION
¶139 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" of Hormel for which compensation
is required. I also agree that under the facts of this case
Hormel is not relieved of its obligation to compensate for 5.7
minutes per day for those tasks by the de minimis rule.
¶140 I dissent from the lead opinion because I conclude
that Hormel is not required to further compensate its employees
due to doffing and donning by employees who choose to leave the
workplace 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 Wis. Admin. Code
§ DWD 272.12(2)(e)1 and serves only employees' interests. I
also dissent because I would cabin the time for which
compensation is due each employee at 5.7 minutes per workday.
That is the total time presented to us as a stipulation by the
15
No. 2014AP1880.pdr
parties for an employee to accomplish donning and doffing at the
beginning and end of a workday. If the time allocated for
donning and doffing were not cabined at a specified number of
minutes per employee per workday, the de minimis rule would
preclude compensation because keeping accurate records of the
varying time that each employee spends donning and doffing on
each workday would be a nearly impossible administrative task
for Hormel. Cabining the time at a specified number of minutes
per employee per workday for which compensation is due was the
mode employed in prior contracts between Hormel and the Union
for those tasks. Accordingly, I respectfully concur in part and
dissent in part from the lead opinion.
¶141 I am authorized to state that Justice DAVID T.
PROSSER, JR. joins this opinion.
16
No. 2014AP1880.mjg
¶142 MICHAEL J. GABLEMAN, J. (dissenting). I agree with
the lead opinion's and the concurring/dissenting opinion's
conclusion that Weissman v. Tyson Foods, Inc., 2013 WI App 109,
350 Wis. 2d 380, 838 N.W.2d 502, review granted, 2014 WI 3, 352
Wis. 2d 351, 842 N.W.2d 359, need not be overruled. However, I
do not agree with the lead opinion's and the
concurring/dissenting opinion's conclusion that Hormel must
compensate its employees for the time they spend "donning and
doffing" company-required "whites" at the Beloit cannery. Unlike
a majority of this court, I conclude that the "donning and
doffing" of the "whites" in this case is not "integral and
indispensable" to the employees' principal work activity of
canning food.
¶143 Because an "integral and indispensable" analysis is
context-specific, I begin by laying out the facts of the present
case.1 I then take up the two issues before this court: (1) is
1
This dissent often quotes information contained in the
record. The information quoted is largely derived from trial
testimony and the circuit court's opinion and order. Below is a
list of individuals who testified at trial:
Scott A. Ramlo: Plant Manager at the Beloit cannery.
Pamela Collins: Quality Control, Weight, and Seam
Technician at the Beloit cannery.
Charles Seeley: Production Specialist at the Beloit
cannery.
Dennis Warne: Stork Operator at the Beloit cannery.
Resha Hovde: Corporate Manager of Regulatory
Compliance and HAACP. HAACP stands for "hazard
analysis critical control point."
(continued)
1
No. 2014AP1880.mjg
the "donning and doffing" of company-required "whites"
compensable work time or non-compensable preliminary and
postliminary activities under Wis. Admin. Code. § DWD
272.12(2)(e); and (2) if the time spent "donning and doffing" is
otherwise compensable work time, is this time non-compensable
under the doctrine of de minimis non curat lex?
I. FACTUAL BACKGROUND
¶144 Hormel Foods Corporation ("Hormel") is a multi-
national company specializing in food production. All the
parties and the lead opinion agree that "Hormel is a fine
employer with a quality record and a history of producing good,
safe food for customers around the world." Lead op., ¶12.
¶145 Hormel has a variety of food producing plants located
in different states. At every one of these plants, and without
regard to what is being produced, Hormel requires its employees
to "don and doff" either "whites" or "blues." Most employees
wear "whites," but the maintenance department wears "blues."
Every day Hormel employees "don and doff" hardhats, hearing
protection, eye protection, hair nets, shoes,2 and clean clothes.
I use the term "whites" to refer to all of the above described
items. Depending on the nature of the job, some employees "don
and doff" additional clothing and gear on top of their "whites."
Currently, Hormel's employees are not paid for the time it takes
Francisco Velaquez: Human Resource and Safety Manager
at the Beloit cannery.
2
Employees wear "captive" or "dedicated" shoes. Captive
shoes are shoes that are left at the facility overnight.
2
No. 2014AP1880.mjg
to "don and doff" the "whites."3 "Donning and doffing" the
"whites" takes, at the median, 2.903 minutes per day. More
specifically, "donning" the "whites" takes, at the median, 2
minutes, 3.84 seconds (or 2.064 minutes),4 and "doffing" the
3
The concurring/dissenting opinion correctly notes that in
the 1980's Hormel compensated its employees 12 minutes per day
for "donning and doffing" under a then-existing collective
bargaining agreement ("CBA"). Concurrence/Dissent, ¶113.
Eventually the compensation Hormel's employees received for
"donning and doffing" was "bargained away." Id., ¶113 n.6.
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 247.05; Aguilar v. Husco Int'l, Inc.,
2015 WI 36, ¶11, 361 Wis. 2d 597, 863 N.W.2d 556 ("[E]ven though
the 20-minute unpaid breaks were technically violations of the
code, it would be unreasonable to grant back pay because the
breaks had posed no health or safety concerns, the statute
permits waivers in circumstances such as these, and the
employees had enjoyed other benefits in exchange for . . . the
short unpaid meal periods.")
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.
4
"Donning" a belt takes 16.740 seconds, "donning" ear plugs
takes 6.960 seconds, "donning" a hair net takes 9.780 seconds,
"donning" a hard hat takes 5.940 seconds, "donning" captive
shoes takes 26.280 seconds, "donning" safety glasses takes 5.400
seconds, "donning" uniform pants takes 19.320 seconds, and
"donning" a uniform shirt takes 18.780 seconds.
3
No. 2014AP1880.mjg
"whites" takes, at the median, 50.34 seconds (or .839 minutes).5
"Donning and doffing" the "whites," washing hands,6 and walking
to an assigned work station takes,7 at the median, 5.7 minutes
per day.8
¶146 This case concerns only Hormel's Beloit cannery. The
Beloit cannery employs approximately 290 people for various
types of work ranging from quality control technician to
forklift driver to sanitation crew member. The record reflects
that only half of Hormel's employees at the Beloit cannery work
near open product. Additionally, only half of the Beloit cannery
has open product in it.
¶147 As a cannery, the Beloit facility is mainly tasked
with preparing, canning, and shipping "shelf-stable" canned
5
"Doffing" a belt takes 3.720 seconds, "doffing" ear plugs
takes 1.980 seconds, "doffing" a hair net takes 4.860 seconds,
"doffing" a hard hat takes 4.440 seconds, "doffing" captive
shoes takes 14.640 seconds, "doffing" safety glasses takes 3.480
seconds, "doffing" uniform pants takes 10.800 seconds, and
"doffing" a uniform shirt takes 6.420 seconds.
6
Washing hands takes 14.640 seconds.
7
The time it takes to walk to and from an employee's
workstation varies depending on the location of the workstation.
The shortest walk time to a workstation takes 27.66 seconds, and
the shortest walk time from a workstation takes 26.16 seconds
(for a total of 53.82 seconds per day). The longest walk time to
a workstation takes 2 minutes, 19.56 seconds, and the longest
walk time from a workstation takes 1 minute, 31.74 seconds (for
a total of 3 minutes, 51.3 seconds per day).
8
Attached to this dissent are time tables contained in the
record. The tables show how long it takes to "don" and "doff"
various items, to wash hands, and to walk to assigned
workstations.
4
No. 2014AP1880.mjg
goods, including items such as Hormel Chili, Mary Kitchen Hash,
and Chi-Chi's Salsa. This process is largely assembly like:
outside suppliers deliver raw product in a receiving area; the
product is cooked; the cooked product is placed into a can or
glass container; and the canned product is sent through a final
heating process. It is this final heating process, called "12-D
cook" for canned products or "acidification" for glass products,
that renders the product shelf-stable.
¶148 The 12-D cook and acidification processes are quite
technical. For example, Resha Hovde, Hormel's corporate manager
of regulatory compliance and HACCP, testified that Hormel's 12-D
cook process
provides a thermal destruction of organisms, of a
trillion organisms. It's 12 to the 10th power. So if
you could imagine a trillion organisms, and whatever
product it is, it would destroy all the vegetative
organisms . . . . So through time, an extensive amount
of time at a high temperature, we're able to eliminate
those organisms of concern.
In short, the 12-D cook and acidification processes "destroy any
organisms of concern" such that any organism in the can or glass
container "certainly wouldn't be a food safety issue."9 No
9
The following trial testimony emphasizes just how powerful
the 12-D cook and acidification processes are:
Q. Ms. Hovde, yesterday there was a hypothetical
example that was posed to Mr. Ramlo, the plant manager
at the Beloit facility, and it was regarding a world
in which Hormel allows street clothes in the Beloit
facility and doesn't require whites. Now in that
world, according to the hypothetical, an avid
fisherman who works at the Beloit facility would
report to work with fish scales on his clothing and
worms in his pockets. Based on the 12-D cook process
(continued)
5
No. 2014AP1880.mjg
employees come into contact with open product after the 12-D
cook or acidification processes. The next time the product would
come into contact with someone would be when a consumer opens
the can.
¶149 As noted by the lead opinion, Hormel is subject to
federal regulation by the United States Department of
Agriculture (USDA), the United States Food and Drug
Administration (FDA), and the federal Occupational Safety and
Health Administration (OSHA). These regulations ensure that
Hormel satisfies cleanliness, quality, and safety standards;
however, these regulations "do not require these standards be
satisfied in any particular manner." Lead op., ¶17. Instead, the
regulations "generally speak to the point that [Hormel] need[s]
[its] employees to be clean in a manner to prevent product
adulteration or the general creation of unsanitary type
conditions." Notably, the circuit court found,
you just described, what if those fish scales or those
worms made their way into a can of Hormel product?
Would they pose a threat to human safety?
A. I would argue that the heat process would destroy
any organisms of concern.
Q. It might not be desirable to have those items in
the can –-
A. Correct.
Q. –- but it certainly wouldn't be a food safety
issue?
A. Correct.
6
No. 2014AP1880.mjg
The USDA and FDA regulations do not require
employees at the Beloit facility to wear whites. The
USDA and FDA regulations do not specify who has to own
or launder the clothing worn by the employees at the
Beloit facility. Those regulations do not specify
where the items have to be donned, doffed, and stored.
. . .
Hormel employees could wear street clothes at the
Beloit facility and still comply with USDA and FDA
regulations. USDA and FDA regulations do not require
employees at the Beloit facility to keep their shoes
within the facility. The use of captive or dedicated
shoes is not the only method to avoid contamination at
the Beloit plant. Hair covering is left to the
company's discretion under the USDA and FDA
regulations but the hair needs to be secured in a
manner to prevent potential for product adulteration.
Thus, one way Hormel promotes cleanliness, quality, and safety
is by having its employees "don and doff" the "whites." But this
"donning and doffing" is not mandated by any regulation.
II. THE "DONNING AND DOFFING" OF THE "WHITES" IS NOT COMPENSABLE
WORK TIME UNDER THE CODE OR PRECEDENT.
A. WISCONSIN ADMIN. CODE § DWD 272.12
¶150 To resolve this case, I must interpret and apply Wis.
Admin. Code § DWD 272.12. Under Wis. Admin. Code § DWD
272.12(1)(a)1., employees "must 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.'" An
employee's 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 workplace.'" Wis. Admin.
Code § DWD 272.12(1)(a)1.
7
No. 2014AP1880.mjg
¶151 Compensable time is measured in terms of a "workday."
According to Wis. Admin. Code § DWD 272.12(1)(a)2., the
"'[w]orkday,' 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.'" Activities that fall outside the workday are
called "preliminary" or "postliminary" activities. See Wis.
Admin. Code § DWD 272.12(2)(e)1.c. Pursuant to Wis. Admin. Code
§ DWD 272.12(2)(e), the "term 'principal activities' includes
all activities which are an integral part of a principal
activity." Moreover,
[a]mong the activities included as an integral part of
the principal activity are those closely related
activities which are indispensable to its performance.
If an employee in a chemical plant, for example,
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. . . .
Wis. Admin. Code § DWD 272.12(2)(e)1.c. (emphasis added).
¶152 To summarize, if the "donning and doffing" is a
preliminary or postliminary activity, then it falls outside the
workday and does not qualify as compensable work time. In
contrast, if the "donning and doffing" is a principal activity,
then it falls within the workday and qualifies as compensable
work time. Principal activities include those activities that
are an "integral and indispensable" part of a principal
activity.
8
No. 2014AP1880.mjg
B. PRECEDENT: WEISSMAN v. TYSON FOODS, INTEGRITY STAFFING
SOLUTIONS, INC. v. BUSK, STEINER v. MITCHELL, AND MITCHELL v.
KING PACKING CO.
¶153 In addition to interpreting and applying the pertinent
portions of Wis. Admin. Code § DWD 272.12, I also look to
applicable case law as a guide for determining when an activity
is "integral and indispensable." Four cases, one from the court
of appeals and three from the Supreme Court of the United States
are particularly relevant; thus, a brief recitation of the facts
and holdings of each case is appropriate.
¶154 In Weissman v. Tyson Foods, Inc., 2013 WI App 109, 350
Wis. 2d 380, 838 N.W.2d 502, review granted, 2014 WI 3, 352
Wis. 2d 351, 842 N.W.2d 359,10 the court of appeals considered
whether the "donning and doffing" of sanitary and protective
gear was compensable work time. 350 Wis. 2d 380, ¶1. There, the
Tyson employees at the Jefferson plant primarily produced
pepperonis, a ready-to-eat meat product. Id., ¶4. To answer the
question of whether the employees "donning and doffing"
qualified as compensable worktime, the court conducted a two-
step analysis.
¶155 First, it began with the statutory language of Wis.
Admin. Code § DWD 272.12(1)(a)1., which contains two
requirements: the activity (1) must be "controlled or required
by the employer" and (2) must be done "necessarily and primarily
for the benefit of the employer's business." Id., ¶¶17-21.
Second, the court went on to discuss whether the activity was an
10
Similar to the lead opinion, I will also refer to
Weissman v. Tyson Foods, Inc., as "Tyson Foods."
9
No. 2014AP1880.mjg
"integral part" of a "principal activity." Id., ¶¶22-26. It
concluded that an "integral part" meant an activity that is (1)
closely related to the principal activity and (2) indispensable
to its performance. Id., ¶¶26, 28-31. Using this two-step
approach, the court concluded that the "donning and doffing" was
compensable under the circumstances. Id., ¶37; but see Mitchell
v. JCG Industries, Inc., 745 F.3d 837 (2014) (holding that the
minimal time employees spent "donning and doffing" sanitary gear
during bona fide meal breaks and at the beginning and end of
each day was not work time that had to be compensated).
¶156 A few months after the Wisconsin Court of Appeals
decided Tyson Foods, the Supreme Court of the United States
decided Integrity Staffing Solutions, Inc. v. Busk, __ U.S. __,
135 S. Ct. 513 (2014).11 In Integrity Staffing, the Court
addressed the issue of "whether the employees' time spent
waiting to undergo and undergoing [a] security screening[] [was]
compensable under the [Fair Labor Standards Act]." 135 S. Ct. at
515. The Court concluded that the "roughly 25 minutes" employees
spent each day was not compensable work time. Id.¶157 In reaching that conclusion, the Court reiterated that
it "has consistently interpreted 'the term "principal activity
or activities" [to] embrac[e] all activities which are an
integral and indispensable part of the principal activities.'"
Id. at 517 (emphasis added) (quoting IBP, Inc. v. Alvarez, 546
11
Similar to the lead opinion, I will also refer to
Integrity Staffing Solutions, Inc. v. Busk, as "Integrity
Staffing."
10
No. 2014AP1880.mjg
U.S. 21, 29-30 (2005)). Moreover, the Court clarified that "an
activity is . . . integral and indispensable to the principal
activities that an employee is employed to perform if it is an
intrinsic element of those activities and one with which the
employee cannot dispense if he is to perform his principal
activities." Id. (emphasis added). Finally, the court
unequivocally rejected other courts' reliance on a required-
benefit analysis: "The [Ninth Circuit] erred by focusing on
whether the employer required a particular activity. The
integral and indispensable test is tied to the productive work
that the employee is employed to perform." Id. at 519 (emphasis
omitted). Additionally, the Court noted, "A test that turns on
whether the activity is for the benefit of the employer is
similarly overbroad."12 Id. The Court rejected the required-
benefit approach because "[i]f the test could be satisfied
merely by the fact that an employer required an activity, it
would sweep into 'principal activities'" the type of preliminary
and postliminary activities that Congress worried would "bring
about the financial ruin of many employers," would result in
"windfall payments" to employees, and attempted to remedy when
12
I agree with the lead opinion's and the
concurring/dissenting opinion's conclusion that Tyson Foods need
not be overruled because although the court of appeals applied a
required-benefit test, it went on to discuss whether the
"donning and doffing" under the circumstances present in that
case were "integral and indispensable" to a principal activity.
11
No. 2014AP1880.mjg
it enacted the Portal-to-Portal Act.13 Id. at 517, 519 (internal
quotation marks omitted) (quoting 29 U.S.C. §§ 251(a)-(b)).
¶158 The "integral and indispensable" test is no cake walk
for the party who seeks to establish its requisite elements; it
imposes a tough standard. For example, in Steiner v. Mitchell,
350 U.S. 247 (1956), the Court addressed
whether workers in a battery plant must be paid as
part of their "principal" activities for the time
incident to changing clothes at the beginning of the
shift and showering at the end, where they must make
extensive use of dangerously caustic and toxic
materials, and are compelled by circumstances,
including vital consideration of health and hygiene,
to change clothes and to shower in facilities in which
the state law required their employer to provide, or
whether these activities are "preliminary" or
"postliminary" . . . .
350 U.S. at 248 (emphasis added). In answering that question,
the Court looked to the particular circumstances of the battery
13
Congress enacted the Portal-to-Portal Act in an effort to
remedy a judicial interpretation of the Fair Labor Standard Act
that if permitted to stand would have "br[ought] about the
financial ruin of many employers" and would have resulted in a
windfall of payments to employees "for activities performed by
them without any expectation of reward beyond that included in
their agreed rates of pay." Integrity Staffing Solutions, Inc.
v. Busk, 135 S. Ct. 513, 517 (2014) (internal quotation marks
omitted) (quoting 29 U.S.C. §§ 251(a)-(b)). The Portal-to-Portal
Act exempted employers from liability for claims based on
"activities which are preliminary to or postlimiary to said
principal activity or activities." Id. (quoting 29 U.S.C.
§ 254(a)). These preliminary or postliminary activities "occur
either prior to the time on any particular workday at which such
employee commences, or subsequent to the time on any particular
workday at which he ceases, such principal activity or
activities." Id. (quoting 29 U.S.C. § 254(a)).
12
No. 2014AP1880.mjg
plant, which included the fact that employees "customarily work
with or near the various chemicals in the plant[, including]
lead metal, lead oxide, lead sulphate, lead peroxide, and
sulphuric acid." Id. at 249. There, the "very great" risks
associated with the plant's conditions mandated "the removal of
clothing and showering at the end of the work period." Id. at
250. In fact, the practice of clothing removal and showering
"[had] become [such] a recognized part of industrial hygiene
programs in the industry [that] the state law of Tennessee
[required] facilities for th[at] purpose." Id.
¶159 Under those circumstances, the trial court found, and
the Court agreed, that the employees' activities (changing
clothes and showering) "[were] made necessary by the nature of
the work performed; . . . and that they [were] so closely
related to other duties performed by (petitioners') employees as
to be an integral part thereof, and [were], therefore, included
among the principal activities of said employees." Id. at 252
(emphasis added) (internal quotation marks omitted). In short,
changing clothes and showering was an "integral and
indispensable" part of the production of batteries because
without it, employees would be exposed to chemicals and
potentially poisoned. Id. at 249. To emphasize just how integral
the changing and showering was under those particular
circumstances, the Court concluded by saying, "[I]t would be
difficult to conjure up an instance where changing clothes and
showering are more clearly an integral and indispensable part of
13
No. 2014AP1880.mjg
the principal activity of the employment than in the case of
these employees." Id. at 256.
¶160 Mitchell v. King Packing Co., 350 U.S. 260 (1956),
serves as another example of just how tough the "integral and
indispensable" test is. In Mitchell, the Court considered
"whether the knife-sharpening activities of the employees of
respondent King Packing Co." were an "integral and
indispensable" part of the principal activity of meatpacking.
350 U.S. at 261. Meatpacking includes the "slaughtering,
butchering, dressing, and distributing" of meat. Id.
¶161 There, the Court noted that "[v]arious knives and
electric saws [were] used on the butchering operation" and that
"all of the knives as well as the saws must be 'razor sharp' for
the proper performance of the work." Id. at 262 (emphasis
added). The knives needed to be "razor sharp" because "a dull
knife would slow down production which is conducted on an
assembly line basis, affect the appearance of the meat as well
as the quality of the hides, cause waste and make for
accidents." Id. The Court added, "[for] a knife to be of any
practical value in a knife job[, it] has to be . . . sharp." Id.
(emphasis added). Consequently, the Court held that the knife-
sharpening activities were "an integral part of and
indispensable to the various butchering activities for which
[the employees] were principally employed." It did so because
the knives needed to be "razor sharp" to perform the principal
activity of slaughtering, butchering, dressing, and distributing
the meat. Id. at 261, 262.
14
No. 2014AP1880.mjg
C. THE OUTCOME OF THE LEAD OPINION AND THE CONCURRING/DISSENTING
OPINION CANNOT SURVIVE APPLICATION OF THE "INTEGRAL AND
INDISPENSABLE" TEST.
¶162 Turning to the employees at the Beloit cannery, I
conclude that the "donning and doffing" of the "whites" is not
"integral and indispensable" to performance of a principal
activity; therefore, it is not compensable. In this case, the
"donning and doffing" of the "whites" by Hormel's employees is
not an "intrinsic element" of canning food; moreover, an
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.
¶163 As a result, the lead opinion's and the
concurring/dissenting opinion's conclusion that the "donning and
doffing" of the "whites" is "integral and indispensable" to a
principal activity is incorrect. It is incorrect for two main
reasons: (1) the lead opinion says that the applicable federal
food, health, and safety regulations require Hormel to have its
employees "don and doff" the "whites", but the regulations do
not contain such a requirement; and (2) the lead opinion relies
on and affirms the circuit court's analysis, but the circuit
15
No. 2014AP1880.mjg
court applied the wrong test.14 I will discuss these two reasons
in detail, and then I will provide two examples of when "donning
and doffing" would be compensable.
1. The FDA and USDA Regulations Do Not Support The Lead
Opinion's Conclusion.
¶164 To begin, the "donning and doffing" of the "whites" is
not required by the applicable federal food, health, and safety
regulations. There was abundant testimony regarding this point
at trial:
Q. Are the whites necessary to avoid contamination at
the Beloit facility?
A. No, they're not.
Q. Can you explain to me why that is?
A. Again, back to the regulation, there's various
means to an end. And in that type of environment, in
the food safety realm, we kind of categorize our
plants into, you know, maybe high-risk operations. In
our meat and poultry establishments that produce
ready, or what we determine to be ready-to-eat exposed
meat products, those are determined to be high-risk
operations. Canning operations such as the Beloit
14
Although this dissent refers most often to the lead
opinion, the concurring/dissenting opinion suffers from the same
shortfalls because it agrees with the lead opinion's point of
view: "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' of Hormel Foods Corporation for
which compensation is required," concurrence/dissent, ¶108
(footnote omitted) (citing Lead op., ¶7), and "I agree with the
lead opinion's conclusion that § DWD 272.12(2)(e)1. requires
Hormel to compensate its employees for 5.7 minutes per day that
have been cabined for donning and doffing clothing and equipment
at the beginning and end of the workday," id., ¶117 (citing Lead
op., ¶7).
16
No. 2014AP1880.mjg
facility are deemed lower risk due to that 12-D type
cook process, the canning process in general.
Q. Could Hormel allow employees to wear street clothes
at the Beloit facility and still comply with the FDA
regulations?
A. Yes, they could.
Q. And could Hormel allow employees to bring whites
home with them and bring them back to the facility and
still comply with the FDA regulations?
A. Yes, they could. The clothes just need to be clean.
Q. So long as the clothing is clean?
A. That's correct.
Q. Do the FDA regulations require employees at the
Beloit facility to keep their shoes within the
facility?
A. No, they do not.
Q. What, if anything, do the regulations require in
terms of the shoes people wear at the Beloit facility?
A. Again, it's just clean and what we need to prevent
adulteration of the product.
Q. Are captive, or as you've termed it, dedicated
shoe, is that necessary to avoid contamination at the
Beloit facility?
A. No, it's not.
. . .
Q. Do the FDA regulations require employees at the
Beloit facility to wear the hardhats that you see on
Holly Hormel?
A. No, the FDA regulations do not.
Q. What, if anything, do the FDA regulations require
in terms of hardhats?
A. In terms of hardhats, nothing. As far as hair
covering, they leave it to our discretion. The hair
17
No. 2014AP1880.mjg
should be secured, a manner secured to prevent the
potential for product adulteration.
. . .
Q. Okay. Do the FDA regulations require employees at
the Beloit facility to wear safety glasses?
A. No.
Q. Do the FDA regulations require employees at the
Beloit facility to wash their hands?
A. Again, the regulations are not very specific. It's
somewhat of a means to an end, and it does describe
where necessary they should be washing their hands. So
if they're in direct product contact, they should be
washing their hands per the FDA regulations.
(Emphasis added.) Similarly, the USDA regulations do not require
"donning and doffing":
Q. Do the USDA regulations require employees at the
Beloit facility to wear whites?
A. No, they do not.
Q. What, if anything, do the USDA regulations require
in terms of clothing at the Beloit facility?
A. Again, it's very open-ended in terms of, you know,
there's various means to an end. We just have to
prevent adulteration and the creation of insanitary
conditions. So essentially clean clothes.
Q. Do the USDA regulations specify who has to own or
launder the clothing worn at the Beloit facility?
A. They do not.
Q. Do the regulations specify where those items are
donned and doffed and stored?
A. No.
Q. Does wearing the whites at the Beloit facility
comply with the USDA regulations?
A. Yes, it does.
18
No. 2014AP1880.mjg
Q. Are whites necessary to prevent the adulteration of
product or the creation of insanitary conditions at
the Beloit facility?
A. No, they're not.
(Emphasis added.) After hearing all the testimony regarding the
federal regulations, the circuit court even concluded that the
federal regulations do not require employees to wear the
"whites," do not specify where the "whites" have to be "donned,"
"doffed," or stored, and do not require captive shoes. Indeed,
the circuit court concluded that "Hormel employees could wear
street clothes at the Beloit facility and still comply with the
USDA and FDA regulations." (Emphasis added.) In sum, compliance
with the federal regulations under these circumstances is not——
and cannot be——what makes the "donning and doffing" of the
"whites" "integral and indispensable" to the employees'
principal activity of canning food. The lead opinion nonetheless
contorts these federal regulations into just such a conclusion.
2. The Lead Opinion Conflates The Required-Benefit Test With The
"Integral and Indispensable" Test.
¶165 The lead opinion's reliance on the circuit court's
"comprehensive decision holding in favor of the Union" is
mistaken because the circuit court incorrectly applied the
"integral and indispensable" test by repeatedly focusing on
whether the "donning and doffing" was required by and benefitted
Hormel. Lead op., ¶5. In other words, the lead opinion conflates
the required-benefit test with the "integral and indispensable"
test.
¶166 After discussing whether the "donning and doffing" of
the "whites" was required by and benefitted the employer, the
19
No. 2014AP1880.mjg
circuit court appeared to transition to analyzing and applying
the "integral and indispensable" test. In fact, the heading of
this section in the circuit court's opinion and order reads,
"ARE THE ACTIVITIES CLOSELY RELATED TO AND INDISPENSABLE TO
PERFORMANCE OF A PRINCIPAL ACTIVITY?" Moreover, the circuit
court acknowledged that "[e]ach of the class members agreed that
there was nothing essential about the clothes Hormel required
them to wear in order to get their job done. Each of them agreed
that they could probably perform each of the movements required
by their job even if wearing street clothes." The circuit court
went on to quote plant manager Scott Ramlo:
A. The clothes that they put on are there for their
benefit and they're a good manufacturing practice and
we require it, that's not disputed. But it, it doesn't
have anything to do with the production of the
product, I guess, for lack of -- maybe I'm
oversimplifying it, but its not required, it -- I'm
sorry, it's not essential as they make the product, it
adds nothing to it. Now there are certain food
manufacturing processes that, you know, perfectly
clean clothes and, and like a ready-to-eat atmosphere,
say something like that, we don't have any of those in
the Beloit plant that it might add some value to it.
But I can go there today and produce the products and
do everything that everybody had on that screen other
than the sanitation job, I can make that product the
same quality. It's no different. And the key to the
whole process in the Beloit plant being a cannery is
that the product is pressure cooked and it's shelf-
stable. So any microorganisms, that type of thing that
might be inferred by having perfectly clean clothing
each day really is negated by the thermal
process. . . .
(Emphasis added.) Rather than applying the "integral and
indispensable" test, however, the circuit court's analysis
transformed into an analysis of the required-benefit test:
20
No. 2014AP1880.mjg
"[t]he most important part of [Scott Ramlo's] answer was at the
start when he admitted that wearing the whites and gear was
required by Hormel." (Emphasis added.)
¶167 The circuit court's emphasis ("the most important
part") on the fact that "donning and doffing" the "whites" was
required by the employer shows that the circuit court mixed a
required-benefit analysis into what was supposed to be an
"integral and indispensable" analysis. In fact, the circuit
court's analysis is littered with references to the fact that
"donning and doffing" was required by and benefitted Hormel:
Ms. Collins agreed that she could physically perform
the tasks she is required to perform at work in
clothes she wore from home but Ms. Collins
continually, and correctly, pointed out that she is
required to wear those clothes and equipment in order
to get into the canning part of the plant pursuant to
Hormel's rules.
The overwhelming evidence is that Hormel requires the
class member to don and doff those materials to
operate the Beloit facility in compliance with the
federal regulations of USDA, FDA, and OSHA. There are
also efficiencies already noted, an avoidance of
recalls, and customer satisfaction benefits. All of
these benefits are in place for Hormel because it
requires the Class members to don and doff the
clothing and equipment on the premises.
I further find that the donning and doffing of the
whites and related gear is indispensable to the
performance of the class members' principal
activities. This is so because Hormel has made it so.
The only credible evidence is that Class members are
required to wear these materials . . . ."
These acts are obligatory, essential, and absolutely
necessary because Hormel controls the process and has
required these acts.
21
No. 2014AP1880.mjg
The focus is not on what the United States government
may require but, instead, what Hormel requires of its
own employees.
These activities are controlled by the employer for
the employer's benefit and are integral to the Class
members' work.
(Emphasis added.) These are just a handful of times the circuit
court looked at what Hormel required and whether Hormel
benefited rather than looking to whether the "donning and
doffing" of the "whites" was "integral and indispensable" to the
principal activity of canning food.15 The circuit court did not
have the benefit of the Supreme Court of the United State's
decision in Integrity Staffing as the circuit court's decision
was issued prior to Integrity Staffing. However, this court did
have such guidance. The lead opinion's choice to rely on the
circuit court's "comprehensive decision holding in favor of the
Union" rather than the Supreme Court's instruction in Integrity
Staffing is curious.
D. ADDITIONALLY, THE TIME SPENT "DONNING AND DOFFING" THE
"WHITES" DURING MEAL PERIODS IS NOT COMPENSABLE WORK TIME.
¶168 Related to the question of whether "donning and
doffing" of the "whites" at the beginning and end of each work
day is compensable, is the question of whether "donning and
doffing" during the employees' 30-minute meal period is
compensable. I have already concluded that the "donning and
doffing" of the "whites" is not compensable because it fails the
15
Indeed, the circuit court seems to have concluded that
the "donning and doffing" of the "whites" is indispensable
because it is required. This is a conflation of the required-
benefit analysis and the "integral and indispensable" analysis.
22
No. 2014AP1880.mjg
"integral and indispensable" test. However, I briefly comment on
the lead opinion's and the concurring/dissenting opinion's
analyses of this issue because I believe that neither can square
their determinations that the "donning and doffing" of the
"whites" at the beginning and end of the workday is compensable
with their determinations that the exact same "donning and
doffing" is not compensable when done over the lunch hour.
¶169 Most Hormel employees have a 30-minute unpaid lunch
break. An employee may choose to go off his or her work premises
to eat a meal. If an employee leaves, he or she is required to
change out of his or her "whites" and then change back into the
"whites" when he or she returns. Regardless of whether the
employee leaves (and accordingly "dons and doffs") or stays on
site, the employee is entitled only to 30 minutes.
¶170 Hormel's employees argue that they have been denied
the "right under Wisconsin law to have a 30-minute lunch period
free from duty in which the employee is free to leave the
premises." The test for whether meal time "donning and doffing"
is compensable is simple and familiar: meal time "donning and
doffing" is compensable if it is "integral and indispensable" to
an employee's principal activity.16
16
In an attempt to reach its current outcome, the
concurring/dissenting opinion distorts the analysis for
lunchtime "donning and doffing." Although the
concurring/dissenting opinion believes the "donning and doffing"
of the whites is "integral and indispensable" to "sanitary food
production" at the beginning and end of the day, it concludes
that the same "donning and doffing" of the same "whites" is no
longer "integral and indispensable" to "sanitary food
production" when done over the lunch hour. Concurrence/Dissent,
¶121. The concurring/dissenting opinion states,
(continued)
23
No. 2014AP1880.mjg
¶171 The lead opinion and the concurring/dissenting opinion
believe that the "donning and doffing" of the "whites" is
"integral and indispensable" to canning food and, therefore,
compensable. Except, that is, when the "donning and doffing"
occurs during the lunch hour instead of at the beginning and end
of the work day. But the employees' principal activity has not
changed; it is still canning food. And what is required to be
"donned and doffed" has not changed; it is still the "whites."
First, no interest of Hormel is served by employees
leaving its facility during lunch break. Stated
otherwise, leaving Hormel's facility at lunch does not
aid in sanitary food production, which is a principal
activity of Hormel. Second, the choice to leave
Hormel's facility at lunch is totally each individual
employee's choice, not Hormel's.
Id., ¶122 (emphasis added). There are two problems with this
conclusion.
First, the concurring/dissenting opinion focuses on what
Hormel requires and whether Hormel benefits. As laid out in full
earlier, conflating the required-benefit test with the "integral
and indispensable" test goes against the law as clarified by the
Supreme Court of the United States in Integrity Staffing.
Second, the concurring/dissenting opinion applies the wrong
test by focusing on the employees' choice to leave. The test is
whether the "donning and doffing" of the "whites" when entering
and exiting the Beloit cannery (whether at the beginning and end
of the day or at lunch) is "integral and indispensable" to
canning food. The lead opinion and concurring/dissenting opinion
say it is at the beginning and end of the day. Common sense
would dictate that if "donning and doffing" the "whites" is
"integral and indispensable" to canning food at the beginning
and end of the day, then it must also be "integral and
indispensable" to canning food at the middle of the day after
lunch.
24
No. 2014AP1880.mjg
The only change is the time at which the employee "dons and
doffs."
¶172 To say that "donning and doffing" of the "whites" is
"integral and indispensable" when an employee arrives and leaves
at the end of the day but is not "integral and indispensable"
when an employee leaves and arrives at lunch is unsupported by
the law. If the lead opinion and the concurring/dissenting
opinion conclude (as they do) that the "donning and doffing" of
the "whites" is so "integral and indispensable" to canning food
at the start of the shift at the beginning of the day that it
must be compensable, then they must also conclude that the
"donning and doffing" of the "whites" is "integral and
indispensable" to canning food at the start of the shift after
the lunch period. The lead opinion and the concurring/dissenting
opinion somehow do not. In doing so, the lead opinion and the
concurring/dissenting opinion admit that the "donning and
doffing" of the "whites" is not truly "integral and
indispensable" to the employees' principal activity of canning
food.
E. "DONNING AND DOFFING" IS SOMETIMES COMPENSABLE.
¶173 That the "donning and doffing" of the "whites" is not
compensable under our specific factual circumstances becomes
abundantly clear when compared to "donning and doffing" that is
compensable under other circumstances.
¶174 For instance, some of Hormel's employees are part of a
sanitation crew; these sanitation crew members "play a real
critical part in cleaning the entire plant up top to bottom
25
No. 2014AP1880.mjg
every night . . . ." Employees who work in sanitation wear
different and additional clothing and equipment:
They will wear--the eyewear is more of a goggles and,
in addition to a face shield. They also wear--the
footwear would be different. They're standing in water
the entire time. So tennis shoes, something like that,
wouldn't be appropriate. And then they have--we call
it a rain suit, but it's just a big yellow pants with
suspenders and a coat that's yellow, too. So it
protects them. And then they also, I think all of them
wear arm guards. So you're sealed against the
chemicals that you work with. Pretty much every job in
our wet area, you're dealing with chemicals every
night.
Hormel pays its sanitation workers to "don and doff" this
additional clothing and equipment because "[the sanitation
workers] really couldn't do their job without [it]. I mean
safety and commonsense, everything says that they wouldn't be
able to safely work out there with all those chemicals without
this equipment." (Emphasis added.) Simply put, the sanitation
crew's principal activity is sanitizing the plant, and
sanitizing the plant necessitates contact with "very caustic or
acidic" chemicals; therefore, the sanitation crew must wear
protective gear in order to sanitize the plant with chemicals.17
17
Scott A. Ramlo, plant manager at the Beloit cannery,
testified that some of the chemicals the sanitation crew works
with are "very caustic or acidic and will cause skin damage,
irritation." He went on to say the following:
Q. I'm sorry? Now, what, what are the cleaning
materials please?
A. It can be any number of chemicals, but it's a foam
that comes from a central foaming station that will
break the surface tension of the product on to the
stainless steel. . . . So the foam that he's using
and applying there is corrosive materials that you
(continued)
26
No. 2014AP1880.mjg
¶175 Here is a second example. In addition to running a
cannery, Hormel runs other types of food-related operations. In
Algona, Iowa, Hormel runs a dry sausage operation, which
primarily makes pepperonis.18 At trial, Francisco Velaquez, a
resource and safety manager at Hormel, testified that pepperoni
is a ready-to-eat meat product that must be produced in a ready-
to-eat facility. For comparison, plants that produce ready-to-
eat meat products are considered "high-risk operations" whereas
canneries are considered "lower risk" because food product at a
cannery goes through the 12-D cook or acidification processes.
Because pepperonis are a high-risk, ready-to-eat meat product,
employees at this type of facility must "don and doff"
additional items on top of their "whites" to prevent different
types of contamination (contamination that is not annihilated
with a 12-D cook or acidification process).19
have to be protected from. And he'll spray that. After
he's done, a quick rinse of the equipment when he
first got to it, then he'll come and put that foam
over the entire, all that equipment. You can see it's
foam because it clings.
(Emphasis added.)
18
Interestingly, the employees in Tyson Foods primarily
made pepperonis.
19
Scott Ramlo, plant manager at the Beloit facility,
testified, "There are certain things that you should probably do
if you're making bacon or pepperoni or something that somebody's
going to eat right out of the package versus what we do, which
is a thermos-processed product that's fully processed in a can,
very different than some other products."
27
No. 2014AP1880.mjg
¶176 For instance, a high-risk, ready-to-eat meat facility
is especially concerned with Listeria or Salmonella, which is
often tracked into a plant by street shoes. To combat those
risks, "[Hormel] ha[s] [its employees] change into these rubber
boots. Then [the employees] have to go through something called
a boot scrubber, and there [Hormel] appl[ies] quaternary
ammonium" to reduce contamination. Additionally, employees
"typically have plastic aprons that they put over their
whites. . . . And then they have these things called sleeve
guards that are plastic that go up to their elbows, and then
they have rubber gloves that they wear that they tuck under
their sleeve guards."
¶177 Employees at these high-risk, ready-to-eat meat
facilities are paid for the time they spend "donning and
doffing" their additional gear; that is, they are paid for the
time it takes to put on, wash, and take off their boots as well
as the time it takes to put on and take off their aprons, sleeve
guards, and rubber gloves. The "donning and doffing" of this
extra gear is compensable because it is "integral and
indispensable" to producing high-risk, ready-to-eat meat
products.
¶178 The above two examples help to illustrate exactly what
the "integral and indispensable" test calls for. Namely, for the
employer-required activity to be compensable, it must be an
"intrinsic element" of the activity performed and "one with
which the employee cannot dispense if he is to perform those
activities." Integrity Staffing, 135 S. Ct. at 517. A sanitation
28
No. 2014AP1880.mjg
crew member cannot dispense with his or her extra clothing and
equipment due to the "very caustic or acidic" chemicals he or
she is exposed to while performing his or her principal
activities of cleaning and sanitizing. A ready-to-eat meat
facility employee cannot dispense with his or her extra clothing
and equipment due to the high-risk nature of certain types of
contamination at a ready-to-eat meat facility. But a cannery
employee at a "lower risk" facility can dispense with wearing
"whites" and still safely produce clean food.
¶179 In sum, Hormel's own employees put it best when they
testified, and the circuit court found that "there is nothing
essential about the clothes Hormel required them to wear in
order to get their job done." (Emphasis added.) I agree with
Hormel's employees. The "donning and doffing" of the "whites" is
not "integral and indispensable" to the Beloit employees'
principal activity of canning food; therefore, the time spent
"donning and doffing" the "whites" is not compensable.
III. WHAT THE LEAD OPINION DOES NOT DECIDE: THE DE MINIMIS NON
CURAT LEX DOCTRINE.
¶180 I now turn to the second issue: whether the
requirement for compensation for time spent "donning and
doffing" would be obviated by the doctrine of de minimis non
curat lex ("the law doesn't care about trifles"). Because I have
concluded that the employees "donning and doffing" of the
"whites" is not compensable, I need not consider whether the
time spent "donning and doffing" is de minimis.
¶181 However, I write to point out that the lead opinion,
while pretending to engage in a de minimis-like discussion, does
29
No. 2014AP1880.mjg
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. We grant review
of cases only when "special and important reasons are presented"
and when a decision will help "develop, clarify or harmonize the
law." Wis. Stat. § 809.62(1r),(1r)(c). In choosing not to answer
the question before this court, the lead opinion fails to help
"develop, clarify or harmonize the law." As a result, while this
case is decided by the lead opinion for these employees at this
facility, the issue of whether the de minimis doctrine applies
in Wisconsin and how a de minimis determination would be
conducted lives on.20
¶182 The de minimis doctrine simply asks the following:
should all "integral and indispensable" activities, including
those that last a single second or a handful of seconds or
minutes be recorded by and paid for by an employer? See Anderson
20
As stated previously, we were called upon to determine
whether the de minimis doctrine applies in Wisconsin. This was a
question of first impression for this court. The
concurring/dissenting opinion appears to adopt the de minimis
doctrine in Wisconsin. It states, "I adopt and apply the Lindow
test . . . .," concurrence/dissent, ¶130, and "If the time
allocated for donning and doffing were not cabined at a
specified number of minutes per employee per workday, the de
minimis rule would preclude compensation . . . .," id., ¶109.
But the concurring/dissenting opinion fails to explain why it
chooses to adopt the de minimis doctrine in Wisconsin. Similar
to choosing not to answer the question at all, blind adoption of
the doctrine without any explanation fails to help "develop,
clarify or harmonize the law." Wis. Stat. § 809.62(1r),(1r)(c).
30
No. 2014AP1880.mjg
v. Mt. Clements Pottery Co., 328 U.S. 680, 692 (1946) ("Split-
second absurdities are not justified by the actualities of
working conditions . . . ."). Or are there ever activities that
take such a small, trivial amount of time that a court should
not expect an employer to keep track of and compensate for this
time? See JCG Industries, 745 F.3d at 842, 841 (noting that
"[c]ommon sense has a place in adjudication" and commenting that
"[o]ne reason to withhold a remedy is that the harm is small but
measuring it for purposes of calculating a remedy would be
difficult, time-consuming, and uncertain, hence not worthwhile
given that smallness"); Lindow v. United States, 738 F.2d 1057,
1062 (9th Cir. 1984) ("[C]ommon sense must be applied to the
facts of each case."). The Supreme Court of the United States
answered the de minimis question by holding that "[w]hen the
matter in issue concerns only a few seconds or minutes of work
beyond the scheduled working hours, such trifles may be
disregarded." Anderson, 328 U.S. at 692.
¶183 As a result, when a federal court determines that the
time spent on an activity is compensable because it is "integral
and indispensable," the court next determines whether that
compensable time is rendered non-compensable by the de minimis
doctrine. See id. at 693; Lindow, 738 F.2d at 1062 ("As a
general rule, employees cannot recover for otherwise compensable
time if it is de minimis."). In contrast, when a federal court
determines that the time spent on the activity is not "integral
and indispensable," the court's analysis ends and no
compensation is due. See Integrity Staffing, 135 S. Ct. at 515
31
No. 2014AP1880.mjg
(concluding that the activity was not "integral and
indispensable" and, therefore, not proceeding to a de minimis
analysis). We have never before determined whether we should
take this same approach in Wisconsin.21 We were called upon to
make that determination in this case.
¶184 Because the lead opinion concludes that the employees
"donning and doffing" of the "whites" is compensable, it could
have engaged in a full discussion of whether the de minimis
doctrine applies in Wisconsin.22 But it did not. To quote the
lead opinion,
21
If we adopt this approach, then one possible way of
resolving this issue would be as follows: (1) if a court
concludes that an activity is not "integral and indispensable,"
then the analysis ends and no compensation is owed; but (2) if a
court concludes that an activity is "integral and
indispensable," then it must next consider whether the time
spent on that activity is so short in duration that it qualifies
as de minimis, in which case the time is not compensable. Under
this approach, because the lead opinion and the
concurring/dissenting opinion concluded that the time spent
"donning and doffing" is "integral and indispensable," they
would need to then consider whether that time is so short in
duration that it qualifies as de minimis. If it qualifies as de
minimis, then no compensation is due.
22
Simply put, the lead opinion had an abundance of options
in this case, but it chose none. The lead opinion could have
concluded that the de minimis doctrine does not apply in
Wisconsin. The lead opinion could have concluded that the de
minimis doctrine applies in Wisconsin and then provided a
practical framework for how to conduct a de minimis analysis.
The lead opinion could have concluded that the de minimis
doctrine applies and then held that the 2.903 minutes spent
donning and doffing each day was too long in duration to qualify
as de minimis. Rather than choose any of the above options, the
lead opinion picked an outcome and reached a conclusion for
these litigants on this day.
32
No. 2014AP1880.mjg
Assuming, without deciding, that the de minimis
doctrine is applicable to claims under Wis. Admin.
Code § 272.12, we conclude that in the instant case,
the de minimis doctrine does not bar compensation for
the time spent donning and doffing the required
clothing and equipment because the time spent donning
and doffing is not a "trifle."
Lead op., ¶98 (emphasis added).23 Why assume without deciding?
The question was certified by the court of appeals, the parties
spent roughly 17 pages of their respective briefs on the issue,
and the parties addressed this issue during oral argument before
this court. Perhaps the lead opinion chooses not to answer the
question because it cannot reach its present outcome given what
the law is.
¶185 The law is this. The Supreme Court of the United
States first applied the de minimis doctrine in Anderson v. Mt.
Clements Pottery Co., 328 U.S. 680 (1946). There, the employees
alleged that their employers' method of calculating hours did
not "accurately reflect all the time actually worked and that
they were thereby deprived of" proper overtime compensation.
Anderson, 328 U.S. at 684. The employees wanted their walk time
to and from their workstations as well as their "donning and
doffing" of work clothing included in their work hours. Id. at
682-83.
¶186 In resolving that question, the Court noted,
23
The concurring/dissenting opinion also notes that the
lead opinion dodges the question of whether the de minimis
doctrine applies in Wisconsin: "The lead opinion concludes that
donning and doffing at the beginning and end of the workday are
not de minimis, assuming that the de minimis rule may be applied
to the Union's claims." Concurrence/Dissent, ¶1125 (emphasis
added).
33
No. 2014AP1880.mjg
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.
Id. at 692 (emphasis added). Later in the opinion, the Court
reiterated, "it is appropriate to apply a de minimis doctrine so
that insubstantial and insignificant periods of time spent in
preliminary activities need not be included in the statutory
workweek. Id. at 693 (emphasis added). The Anderson Court's
focus was on time, specifically whether the activity took just
"a few seconds or minutes." See also Lindow, 738 F.2d at 1062("An important factor in determining whether a claim is de
minimis is the amount of daily time spent on the additional
work.").
¶187 While making sure to explain that it is not deciding
whether the de minimis doctrine applies in Wisconsin, the lead
opinion nevertheless discusses the doctrine and pays lip service
to Anderson by quoting its use of the word "trifle." But
unsurprisingly the lead opinion chooses not to apply Anderson's
test.24 Instead, the lead opinion cherry-picks one factor (not
24
Again unsurprisingly, the concurring/dissenting opinion
also gives Anderson, the Supreme Court of the United States
decision that created the de minimis doctrine, a fleeting
glance. The concurring/dissenting opinion mentions Anderson a
meager three times in its entire de minimis discussion, which
spans approximately five pages. See Concurrence/Dissent, ¶¶126,
128, 131. Rather than rely on a Supreme Court decision, the
concurring/dissenting opinion roots its analysis in a Ninth
Circuit opinion, Lindow v. United States, 738 F.2d 1057 (9th
Cir. 1984). In fact, the concurring/dissenting opinion formally
(continued)
34
No. 2014AP1880.mjg
found in Anderson) in which to ground its conclusion.25 The lead
opinion states,
[i]n the instant case, employees spend approximately
24 hours per year donning and doffing. 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. We agree with the circuit court that in the
instant case this time is not a "trifle."
Lead op., ¶102 (emphasis added).26
"adopt[s] and appl[ies] the Lindow test." Concurrence/Dissent,
¶130.
Lindow is cited by federal courts for its four-factor de
minimis approach. Under Lindow, a de minimis determination looks
at (1) the amount of daily time spent on the additional work,
(2) the administrative difficulty in recording that additional
time, (3) the aggregate amount of compensable time, and (4) the
regularity of the additional work. 738 F.2d at 1062-63. Missing
from the concurring/dissenting opinion's discussion of Lindow is
a critical quote from Lindow: "Most courts have found daily
periods of approximately 10 minutes de minimis even though
otherwise compensable." Id. at 1062. Lindow itself stands for
the proposition that the 7 to 8 minutes employees spent on
activities qualified as de minimis. Id. at 1063-64.
25
The lead opinion does not cite Lindow, but it arguably is
where the lead opinion hand-picked the aggregate sum factor. If
so, the lead opinion conveniently forgot to look at the first
factor: "the amount of daily time spent on the additional work."
Lindow, 738 F.2d at 1062 (emphasis added).
26
The concurring/dissenting opinion also utilizes an
aggregate sum factor: "In addition, although 5.7 minutes per day
is a small amount of time, because it is expended every day, the
aggregate amount of each employee's claim per year is $500,
which is significant. It is also significant to Hormel as an
aggregate amount for all food preparation employees."
Concurrence/Dissent, ¶136 (emphasis added). Not only is the lead
opinion's and the concurring/dissenting opinion's seemingly
outcome oriented choice to ground their analyses in an aggregate
sum factor not supported by the law (namely, Anderson), but also
their outcome leads to disparate treatment under the law. A de
minimis analysis that is focused on a dollar figure will favor
(continued)
35
No. 2014AP1880.mjg
¶188 Hidden in the lead opinion's language is a conclusion
that is at odds with the law: that 2.903 minutes is not de
minimis. The lead opinion cannot state outright that 2.903
minutes is not de minimis because it would be hard-pressed to
reconcile that determination with the fact that Anderson
designed the de minimis doctrine to preclude compensation when
"the matter in issue concerne[d] only a few seconds or minutes
of work." 328 U.S. at 692 (emphasis added). Moreover, it cannot
state outright that 2.903 minutes is not de minimis because it
would have to face the fact that "[m]ost courts have found daily
periods of approximately 10 minutes de minimis even though
otherwise compensable." Lindow, 738 F.2d at 1062 (emphasis
added) (holding that the 7 to 8 minutes the employees spent on a
pre-shift activity in that case was de minimis and citing a
litany of cases for the proposition that daily periods of 10
minutes or less are de minimis).
those employees who are paid a higher wage. Employees who make
only $5 per hour and file a wage and hour claim will have their
aggregate sum declared de minimis, but employees who make $22
per hour will have their aggregate sum declared not de minimis.
Perhaps this is why Anderson's focus was on time, and whether
the activity concerned just a few "minutes or seconds."
36
No. 2014AP1880.mjg
¶189 If the lead opinion were to actually answer the
question of whether the de minimis doctrine is a part of
Wisconsin law, then it would have to focus on——or at the very
least discuss——the amount of daily time spent on "donning and
doffing" (here, 2.903 minutes) and whether that time qualifies
as just a few "seconds or minutes." The lead opinion tiptoes
past this quagmire by sidestepping the question entirely.27
27
The concurring/dissenting opinion also creeps past the
time predicament but does so in a different way. The
concurring/dissenting opinion concludes,
If the time allocated for donning and doffing were not
cabined at a specified number of minutes per employee
per workday, the de minimis rule would preclude
compensation because keeping accurate payroll records
of the varying time that each employee spends donning
and doffing would appear to be a nearly impossible
administrative task for Hormel.
Concurrence/Dissent, ¶109. In sum, because the parties
stipulated to 5.7 minutes, 5.7 minutes is not de minimis.
Otherwise, 5.7 minutes would be de minimis. According to the
concurring/dissenting opinion, this time becomes de minimis if
it is not cabined because "if Hormel were required to record for
payroll purposes the varying amounts of the time that each
individual employee expends to don and doff at the beginning and
end of each workday, it would appear to be almost an
administrative impossibility to do so accurately." Id., ¶132;
see also id., ¶¶ 109, 135, 138, 140.
The problem with the concurring/dissenting opinion's
conclusion that it "would appear to be" an administrative
impossibility to accurately record the time is that the circuit
court made the exact opposite finding of fact in its opinion and
order. The circuit court spent nearly two and a half pages in
its order and opinion specifically addressing whether it would
be administratively difficult for Hormel to accurately record
"donning and doffing" time. Indeed, the section of the circuit
(continued)
37
No. 2014AP1880.mjg
Consequently, the question is left unanswered and Wisconsinites
are left wondering.
¶190 In sum, the lead opinion could have resolved the issue
of whether the de minimis doctrine applies in Wisconsin, and it
could have provided a workable test or approach for how to
conduct a de minimis analysis. It chose not to. When we accept a
case, we do so to help "develop, clarify, or harmonize the law."
As such, the lead opinion owed the people of Wisconsin and the
parties a full and thorough discussion on whether the de minimis
doctrine applies in Wisconsin as well as a discussion on the
proper method or approach for conducting a de minimis analysis.
court's opinion and order is titled "Practical Administrative
Difficulties." There, the court stated,
Despite carrying the burden of proof on the de minimis
issue, I find that Hormel has not provided credible
evidence of administrative difficulties which may be
encountered if it is required to record the additional
donning and doffing time. As a result, factor two [of
the Lindow test] also falls in favor of the Class.
(Emphasis added.) Later, the circuit court again emphasized that
"the vague and unsubstantiated opinions of Hormel employees
about the administrative difficulties of reimbursing the Class
members for donning and doffing are belied by the daily
activities at the Beloit Hormel plant. . . . Hormel's processes
show that it is able to monitor [employees] adequately."
(Emphasis added.) Thus, the concurring/dissenting opinion's
conclusion that it "would appear to be" an administrative
impossibility to record the time spent "donning and doffing" is
directly contrary to the circuit court's explicit finding of
fact on that point. The concurring/dissenting opinion "appears"
to ignore the circuit court's opposite finding of fact, as it
fails to acknowledge the circuit court's factual finding and
fails to provide any discussion of whether the circuit court's
finding would be clearly erroneous.
38
No. 2014AP1880.mjg
Because the lead opinion elects to leave today's question
unanswered, it short-changes the people of Wisconsin.
IV. CONCLUSION
¶191 I cannot join the lead opinion because I believe it
reaches the wrong conclusion as to whether the "donning and
doffing" of the "whites" is "integral and indispensable" and
reaches no determination as to whether the de minimis doctrine
is a part of Wisconsin law or how a de minimis analysis is to be
conducted in future cases.
¶192 For the reasons stated, I respectfully dissent.
¶193 I am authorized to state that Justice ANNETTE
KINGSLAND ZIEGLER joins this dissent.
39
No. 2014AP1880.mjg
40
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41
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42
No. 2014AP1880.mjg
1