The Wisconsin Supreme Court affirmed workers who spend time putting on and taking off clothing and other work gear before and after their shift (“donning and doffing” in employment law terms) must be paid for the time these activities take.
The class action case, filed by the United Food & Commercial Workers Union on behalf of 330 current and former Hormel employees, was decided in the Rock County Circuit Court in favor of the union, and affirmed in the circuit court.
The United Food & Commercial Workers Union (Local Section 1473) alleged that Hormel violated Wisconsin wage and hour laws for failing to pay for the additional 5.7 minutes of time per day it takes workers to don (get dressed for work) and doff (remove work clothing). The time spent putting on and taking off the required clothing and equipment has not previously been included in the employees’ compensation, which resulted in employees working more than 40 hours per week without being paid overtime.
As Justice Shirley Abrahamson noted in her lead opinion, the “Work Rules” Hormel employees are required to abide by state that employees wear certain clothing and equipment on daily basis. “If employees do not wear the required clothing and equipment, the employees are subject to discipline, up to discharge,” Abrahamson wrote.
Hormel employees must don Hormel-provided hard hats, hearing protection, eye protection, and hair nets. Employees must also wear clean and sanitary footwear at all times. The clothing, which cannot under any circumstances be worn outside the Hormel plant, is provided by the company and must be changed daily. In certain cases, Hormel clothing must be changed more often than once daily.
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Abrahamson cited the Wisconsin Department of Workforce Development code in determining that the action of putting on white shirts and pants, hard hats and hearing protection, and hand-washing qualifies as “physical or mental exertion.” The Workforce code 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.”
Back in the 1980s, Hormel paid its employees an extra 12 minutes per day for the “donning and doffing” under a then-existing union collective bargaining agreement (“CBA”). Eventually, however, that compensation was “bargained away.”
Abrahamson’s lead opinion did not affirm the lower court’s determination that employees should be paid for donning and doffing even if they leave for lunch breaks. Abrahamson noted the parties agreed on that issue and therefore rendered no opinion on it. Chief Justice Roggensack dissented with this decision, concluding that compensation is not required when employees change clothes for lunch.
“Leaving during the lunch break serves no interest of Hormel, is not ‘an integral part of a principal activity’ of the employer within the meaning of the administrative code, and serves only employees’ interests,” Chief Justice Roggensack wrote.
Hormel argued the doctrine of de minimis non curat lex, which means “the law does not concern itself with trifles,” to bar compensation for only 5.7 minutes of its employees’ time. Justice Abrahamson disagreed, stating, “Viewed in the 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. In the instant case this time is not a ‘trifle.’”
The U.S. Supreme Court weighed in on the “donning and doffing” question in 2014 in Sandifer v. United States Steel Corp. The high court disqualified most clothing as fitting under the Fair Labor Standards Act (“FLSA”), ruling that the vast majority of the time employees spent dressing was not compensable under the federal act.
The case is United Food & Commercial Workers Union, Local 1473 v. Hormel Foods Corporation, 2016 WI 13 (March 1, 2016).