In Mitchell v. JCG Industries and Koch Foods, the plaintiffs, a class of unionized employees, alleged that their employer violated the Fair Labor Standards Act (FLSA) and the Illinois Minimum Wage Law by failing to pay them for time spent donning and doffing protective and sanitary clothing at the beginning and end of their lunch period. In a 2-1 decision, the Seventh Circuit affirmed the district court’s dismissal of the plaintiffs’ claims.
The Facts
The plaintiffs are a group of line workers at a poultry processing plant, represented by a union and subject to a collective bargaining agreement. At the beginning of their shift, the workers are required to put on a sterilized jacket, plastic apron, gloves, plastic sleeves, earplugs and a hairnet. They are required to remove this gear at the start of their lunch break and put it back on at the end of their lunch break, before returning to work. The lunch break is an unpaid thirty-minute break. The time spent changing before and after lunch is taken out of the employees’ lunch break, rather than their working time.
Two Workdays?
The FLSA excludes from compensable time “any time spent in changing clothes at the beginning or end of each workday which was excluded from measured working time…under a bona fide collective-bargaining agreement applicable to the particular employee.” The plaintiffs argued that this provision was inapplicable because the time spent donning and doffing before and after lunch does not take place “at the beginning or end of each workday.” The Seventh Circuit rejected this argument, reasoning that the employees are in effect working two separate four-hour workdays in an 8 ½ hour period, separated by the lunch break. Thus, the exception applied. There is a regulation defining ‘workday’ as “in general, the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” The court explained that the phrase “in general” allows room for an exception and such an exception is warranted in this case.
Let’s See How Long It Really Takes
The court also provided two alternative grounds for its holding. First, the court concluded that the time was part of the employees’ uncompensated bona fide meal period, and the plaintiffs did not assert that the meal period was not bona fide as a result. Second, the court concluded that the time actually spent by the employees donning and doffing is de minimus and undeserving of a remedy. The plaintiffs alleged that it takes them 10 to 15 minutes to change in and out of the gear during lunch. The Seventh Circuit actually conducted an experiment in chambers. They ordered the same gear used by the plaintiffs and had three members of the court’s staff change in and out of the gear as if they were employees of the plant. The court videotaped the donning and doffing of the gear and timed it. Through their experiment, the court concluded that the average time spent donning and doffing during the lunch break was 110 seconds. Though acknowledging that the experiment was not ‘evidence,’ the findings supported the court’s conclusion that the time spent by the plaintiffs was de minimus. The lone dissenter, Judge Diane Wood, wrote “I am startled, to say the least, to think that an appellate court would resolve such a dispute based on a post-argument experiment conducted in chambers by a judge.”
Lessons
While this is a win for employers on the donning and doffing issue, this case provides another example of the federal judiciary’s recent unwillingness to disturb the collective bargaining process. Judge Posner ended the opinion with a reminder that statutes and regulations should not be interpreted broadly so as to remove wage and hour issues from the scope of collective bargaining. This is consistent with the U.S. Supreme Court opinion in Sandifer, et al. v. United States Steel Corp., issued in January of this year.
If you have any questions please contact Steve Lyman at slyman@wp.hallrender.com, Brad Taormina at btaormina@wp.hallrender.com or your regular Hall Render attorney.
