Date: 03-01-2016

Case Style: United Food v. Hormel Foods Corporation

Case Number: 2014AP1880

Judge: Shirley S. Abrahamson

Court: SUPREME COURT OF WISCONSIN

Plaintiff's Attorney: Mark A. Sweet

Defendant's Attorney: Thomas P. Krukowski, Whyte Hirschboeck Dudek

Description: 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
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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.
No. 2014AP1880
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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.
No. 2014AP1880
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(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.
No. 2014AP1880
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¶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.
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¶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.
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¶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."
No. 2014AP1880
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¶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.").
No. 2014AP1880
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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
No. 2014AP1880
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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
No. 2014AP1880
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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).
No. 2014AP1880
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¶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.
No. 2014AP1880
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¶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)
No. 2014AP1880
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¶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.
No. 2014AP1880
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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
No. 2014AP1880
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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, 51618 (2014); Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 875-76 (2014); Tyson Foods, 350 Wis. 2d 380, passim.
No. 2014AP1880
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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.
No. 2014AP1880
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"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.
No. 2014AP1880
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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.
No. 2014AP1880
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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
No. 2014AP1880
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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,
No. 2014AP1880
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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.
No. 2014AP1880
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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.
No. 2014AP1880
24
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).
No. 2014AP1880
25
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.
No. 2014AP1880
26
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)).
No. 2014AP1880
27
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.
No. 2014AP1880
28
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."
No. 2014AP1880
29
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.
No. 2014AP1880
30
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.
No. 2014AP1880
31
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.
No. 2014AP1880
32
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 216
No. 2014AP1880
33
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.
No. 2014AP1880
34
¶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.
No. 2014AP1880
35
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
No. 2014AP1880
36
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.

Outcome: 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.

Plaintiff's Experts:

Defendant's Experts:

Comments: