By Dave Strausfeld, J.D. Under Wisconsin law, employees at a Hormel canning facility must be paid for time spent donning and doffing company-required clothing and gear at the beginning and end of the workday, because this was integral to their principal activities, held the Supreme Court of Wisconsin, in a 4-2 opinion. The average of 5.7 minutes it took them to change was not de minimis. Justice Roggensack (with whom Justice Prosser joined) concurred in the result but partially dissented by finding that the employer was not required to further compensate employees for doffing and donning when they chose to leave work for lunch (the majority declined to affirm the ruling below on this issue but accepted the damage award because the parties accepted it and did not dispute it before the state high court). Justice Gableman, joined by Justice Ziegler, dissented and opined that “donning and doffing” of the “whites” was not “integral and indispensable” to the employees’ principal work activity of canning food (United Food & Commercial Workers Union, Local 1473 v. Hormel Foods Corp., March 1, 2016, Abrahamson, S.). Sanitary food preparation. As a food-processing business subject to federal standards of cleanliness and quality, Hormel enforced work rules requiring employees to wear company-provided clothing while in the plant. The company leased the clothes from a vendor that picked up worn clothes, laundered them, and dropped off clean clothes. Although a collective bargaining agreement was in place, it did not speak to whether time devoted to donning and doffing work clothes and gear was compensable. Unable to persuade the company to compensate employees for this time, the union brought a class action claiming the company violated Wisconsin law. The parties stipulated that donning and doffing averaged 5.7 minutes per day—which equated to 28.5 minutes per week, or approximately 24 hours per year. On appeal of a judgment in favor of the union, the seven-member state supreme court, which was down to six members for this case, splintered, issuing three opinions. Donning and doffing before and after work must be compensated. Four members of the high court, signing onto the lead opinion and a partial concurrence, agreed that Hormel must compensate its employees for the time it took them to don and doff work clothes and equipment before and after work. While the two opinions expressed their rationales differently, both agreed that Wisconsin regulations—which address in some detail when preparatory activities are compensable work time—mandated this result. The lead opinion stressed that donning and doffing clothing and equipment brought Hormel into compliance with federal food and safety regulations. The partial concurrence emphasized that a principal activity of Hormel was sanitary food production, and Hormel’s requirement that employees wear clean whites, hair nets, and other equipment designed to keep foreign objects out of the food was an integral part of the production of sanitary food. Both opinions also cited favorably to a decision from the Wisconsin Court of Appeals, Weissman v. Tyson Prepared Foods, Inc. Not de minimis. The court also rejected Hormel’s argument that the stipulated 5.7 minutes of donning-and-doffing per day was noncompensable because it was de minimis. Assuming, without deciding, that the de minimis doctrine was applicable to claims under Wisconsin’s Administrative Code, the majority agreed that the time spent putting on and taking off the required clothing and equipment was not a “trifle,” at least under the facts of this case. Here, the 5.7 minutes per day added up to approximately 24 hours per year, and at an hourly rate of $22, this could potentially amount to over $500 per year for each employee—a figure that was certainly significant to an employee and to Hormel. Ultimately, the high court affirmed the circuit court’s award of $180,000 to compensate the 330-member class for the time spent donning and doffing required clothing and equipment at the beginning and end of the day. What about leaving premises for meal breaks? Both the partial concurrence and the dissenting opinion found that Hormel was not required to pay for doffing and donning by employees who chose to leave the workplace for lunch, although their rationales were different. According to the partial concurrence, leaving during a lunch break serves no interest of Hormel, and so it is not “an integral part of a principal activity” of the employer within the meaning of the relevant Wisconsin regulation. In the dissenting justices’ view, Hormel was not required to pay for any time spent donning and doffing—not at the beginning or end of the day or at any other time—because changing clothes was not “integral and indispensable” to their principal activities.
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