Gerber Liable for$3M in Donning and Doffing Case

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By Kevin McGowan

May 27 — A baby-food company violated Arkansas state law by not paying production workers for time they spent putting on and taking off required protective gear, a divided Arkansas Supreme Court ruled ( Gerber Prods. Co. v. Hewitt , 2016 BL 167824, Ark., No. 15-966, 5/26/16 ).

In a 4-3 decision, the court affirmed Gerber Products Co. is liable for approximately $3 million in unpaid overtime and interest to workers at its Fort Smith, Ark., plant.

Gerber argued a Fair Labor Standards Act exception excused its failure to pay for donning and doffing time prior to 2013 because the union representing the workers signed collective bargaining agreements that made such time non-compensable.

But the Arkansas Minimum Wage Act doesn't incorporate the FLSA exception, the court ruled. Instead, the approximately 14 to 20 minutes that Gerber workers daily spent putting on and taking off protective gear is compensable under state law, the court said.

The court's decision rests on a “common sense definition” of “work” under the Arkansas law, which isn't a “carbon copy” of the FLSA, said Timothy Steadman, a Little Rock lawyer representing the workers.

The ruling should “ultimately reduce litigation” because the court provided a definitive answer to an open issue under state law, Steadman told Bloomberg BNA May 27.

The damages award covers 821 workers employed by Gerber anytime from 2009 until 2014, when the company began paying for donning and doffing time, said Steadman, who is with Holleman & Associates PA. The average recovery is about $3,500 per worker, with variations based on a worker's tenure and other factors, he said.

Meanwhile, Gerber May 27 said it's disappointed with the decision and exploring all its options.

“Gerber has always honored its responsibilities to its employees as part of the collective bargaining process,” the company said in a statement e-mailed to Bloomberg BNA. “Gerber will continue its commitment to fully comply with all federal and state wage and hour laws, regulations and all other employment laws.”

FLSA Exception Not Applicable

On a matter of first impression, the court said donning and doffing constitute “work” under the state law because they are performed under “strict procedures” developed by Gerber and done for the employer's benefit. State labor department regulations support that donning and doffing is “work” under the state's wage statute, Justice Karen R. Barker wrote.

Gerber argued Arkansas's law should be interpreted consistently with the FLSA, which provides in 29 U.S.C. § 203(o) that employee time spent “changing clothes” can be excluded from compensable time by “a bona fide collective bargaining agreement.”

But the court said a “different interpretation is clearly required” under the Arkansas statute. That the Gerber employees were paid more than double the state's minimum wage doesn't change the rule that a union contract can't alter workers' statutory rights to compensation, the court said.

“Because the [state law] does not contain the FLSA's 203(o) exception, we decline to engraft this exception into the [state law],” Barker wrote.

Dissent: ‘Floodgates Will Open.'

In dissent, Justice Rhonda K. Wood said the ruling means “the floodgates will open to litigation at enormous cost to businesses” in Arkansas.

The majority “undermines the collective-bargaining process and destroys any confidence employers and employees have in the enforceability of their agreements,” the dissent said.

State regulations instruct the Arkansas labor department to consider FLSA precedent when interpreting the state wage law, but the majority ignores that injunction, the dissent said. The majority says the state legislature's “silence” signals “a clear intent to depart” from the FLSA, but state court precedent holds otherwise, the dissent said.

There's “no clear evidence” the state wage law was intended “to set aside long-established contracts” between employers and unions, Wood said.

Prior to 2013, Machinists Local 260 proposed paying the Gerber workers for donning and doffing time, but it subsequently signed contracts treating such time as non-compensable. The court “cannot know whether the union received higher wages or extra benefits” in exchange for dropping its donning and doffing proposal, the dissent said.

The state wage law discourages interference with collective bargaining and there's no apparent statutory need to protect union-represented workers who earn well above the minimum wage, Wood said.

The state law's “own text demonstrates that collectively bargained-for agreements should be upheld,” she said.

Chief Justice Howard Brill and Justice Josephine Linker Hart joined the dissent.

Holleman & Associates PA and Hickey & Hall PLLC represented the workers. Quattlebaum Grooms & Toll PLLC represented Gerber.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at