By Kevin P. McGowan
March 19 --Two union-represented poultry processing workers seeking overtime pay for time spent changing out of and into protective clothes during their 30-minute unpaid meal breaks have no triable Fair Labor Standards Act or Illinois law claim, a divided U.S. Court of Appeals for the Seventh Circuit ruled March 18 (Mitchell v. JCG Indus., Inc., 2014 BL 74671, 7th Cir., No. 13-2115, 3/18/14).
Affirming summary judgment for JCG Industries Inc. and Koch Foods Inc., the court said the U.S. Supreme Court decision in Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 21 WH Cases2d 1477 (2014) (17 DLR AA-1, 1/27/14), supports the principle that under FLSA Section 203(o), “the compensability of time spent changing clothes or washing is a subject appropriately committed to collective bargaining.”
As the plaintiffs' union has agreed with their employer that time spent changing at the beginning and end of the workday is non-compensable and that meal periods are unpaid, the court said it wouldn't upend that arrangement for what it called “minimal” employee time spent removing and putting on sanitary lab coats, aprons, gloves and hairnets.
Even if Section 203(o) does not apply to meal breaks, the court said a “de minimis” doctrine applicable under both the FLSA and state law prevents the poultry workers from pursuing statutory claims for extremely short periods of time spent donning or doffing sanitary gear worn over their regular clothes.
In passing FLSA Section 203(o) in 1947, Congress intended to avoid statutory interpretations at odds with “long-established customs, practices, and contracts between employers and employees,” the court said.
“Employer and union in this case have agreed not to count the tiny donning/doffing times as compensated work,” Judge Richard A. Posner wrote. “Doubtless the union required compensation for that concession to the employer. The plaintiffs in this case are trying to upend the deal struck by their own union.”
Judge Kenneth F. Ripple joined in the majority opinion.
In dissent, Judge Diane P. Wood said the majority ignores the Labor Department's “continuous workday” rule in holding Section 203(o) applies to mid-shift meal breaks, misreads Sandifer, and makes factual determinations about time spent donning and doffing that stray far from an appeals court's proper role.
“I would find that these employees have the right in principle to compensation for their donning, doffing, and cleaning time during the workday (and in particular before and after lunch), and I would remand for trial to determine how much time those activities actually consume,” Wood wrote.
“As I read the Illinois Minimum Wage Act, plaintiffs are entitled to compensation for their donning, doffing, and washing time, both at the beginning and end of the workday and during their lunch break,” the dissent said. “The FLSA independently protects their right to compensation for the lunch-break time. I would remand this case for fact-finding on exactly how much time this is.”
The Supreme Court decision in Sandifer emphasized the congressional preference for collective bargaining on whether union-represented employees should be paid for time spent washing and changing clothes at the beginning or end of workdays, the Seventh Circuit said.
Although Section 203(o) literally applies to activities undertaken at the beginning or end of a “workday,” the appeals court said the poultry workers could be deemed to work two four-hour workdays, with an unpaid meal period in between during which the workers must wash and remove their protective clothes prior to eating and then don their protective clothes before returning to the poultry processing line.
Under the employer's collective bargaining agreement with the Chicago Joint Board of the Retail, Wholesale and Department Store Union, the poultry workers are not paid for time spent washing or changing clothes, whether at the beginning or close of their shifts or during meal breaks, the court said.
The Section 203(o) exception can be applied to the meal break period, the Seventh Circuit said.
“To interpret section 203(o) narrowly disserves the interest of workers by narrowing the scope of collective bargaining and, as in this case, setting a group of workers against their union,” the court said. “There are good practical reasons why the union in this case did not negotiate for making the time compensable.”
Among those reasons are that an employer would “have to keep tabs” on how long it takes each worker to change, the court said. “Unless the employer both fixed a rigid outer limit for time spent changing and monitored compliance, employees would have an incentive to dawdle at changing in order to increase their wage--which remember is an overtime wage,” Posner wrote.
“These complications could be avoided if time spent during the meal break in actually eating had to be compensated,” the court said. “For then the employer would know he had to pay every employee one-half hour of overtime wage in addition to eight hours of the employee's regular wage.”
But the Labor Department's FLSA regulations exclude “bona fide” meal periods from compensable time and the plaintiffs don't allege their meal breaks weren't genuine, the court said.
The Fourth Circuit in an “indistinguishable” case ruled employee time spent donning and doffing safety gear, washing, and walking to and from meal breaks is non-compensable because it's part of a bona fide meal period or alternatively, because such time is “de minimis,” the court said, citing Sepulveda v. Allen Family Foods, Inc., 591 F.3d 209, 15 WH Cases2d 1135 (4th Cir. 2009) (248 DLR A-6, 12/31/09).
Sepulveda thus offers two alternatives to the Seventh Circuit's assumption that Section 203(o) applies to meal breaks, the court said.
One alternative is if the changing occurs during a bona fide meal break, the entire 30-minute period is excluded from compensable time, not just the time spent eating, the court said.
The other alternative is that the FLSA does not count time periods so trivial as to be de minimis, which the Seventh Circuit also said in its 2012 opinion in Sandifer, 678 F.3d 590, 18 WH Cases2d 1825 (7th Cir. 2012) (91 DLR A-2, 5/10/12).
“One reason to withhold a remedy is that the harm is so small but measuring it for purposes of calculating a remedy would be difficult, time-consuming, and uncertain, hence not worthwhile given that smallness,” Posner wrote. “It is inconceivable that 'a substantial measure' of the poultry workers' 'time and effort' is consumed in changing during the lunch break.”
The plaintiffs alleged it takes 10 to 15 minutes to doff and don their protective clothing but the employer said it takes two to three minutes, the court noted. The district court didn't offer an opinion on how long the changing takes, “a question difficult to answer in the usual way of judicial fact determination,” the Seventh Circuit said.
The Seventh Circuit conducted an exercise in which some court employees were videotaped donning and doffing the same exact clothing and equipment worn by the poultry workers, the court said. The experiment showed the average time it takes to remove the items was 15 seconds and the average time to put them on was 95 seconds, the court said.
The court employees' demonstration isn't evidence, the Seventh Circuit said, but “it is information that confirms the common sense intuition that donning and doffing a few simple items of clothing and equipment do not eat up half the lunch break,” Posner wrote.
“The intuition is compelling; no reasonable jury could find that workers spend half their lunch break taking off and putting on a lab coat, an apron, a hairnet, plastic sleeves, earplugs and gloves,” the court said. “What a reasonable jury could not find does not create a triable issue of fact.”
“Common sense has a place in adjudication,” the court said. “What could be more absurd than to require as a matter of interpretation of the Fair Labor Standards Act that donning and doffing times during lunch breaks be measured daily for each poultry worker for purposes of calculating overtime pay (a modest fraction of an hour's wage) due each worker twice every day?”
The Supreme Court in Sandifer did not unreservedly endorse the Seventh Circuit's de minimis reasoning in that case, as the justices pointed out the FLSA is concerned with small periods of employee time that can accumulate, Posner acknowledged.
But the Supreme Court in Sandifer did say it wanted to avoid “relatively inconsequential judicial involvement in 'a morass of difficult, fact-specific determination,' ” the appeals court said.
“This is an exact description of a court's determining the changing time spent by the different poultry workers on different days, rather than leaving it to the union to decide to negotiate in lieu of the monitoring and incessant disagreement that such a measurement process would require to implement an alternative form of compensation,” Posner wrote. “No way the workers would come out ahead by prevailing in this class action suit.”
As for the plaintiffs' class claims under the Illinois Minimum Wage Law, the court said the state law includes no provision similar to FLSA Section 203(o).
The Illinois Department of Labor has issued regulations defining “hours worked” as “all the time an employee is required to be on duty, or on the employer's premises, or at other prescribed places of work, and any additional time he or she is required or permitted to work for the employer,” the court said.
“That's broad, and standing alone could encompass time spent changing during a meal break, because that can only be done on the employer's premises,” the court said.
But the Illinois wage and hour regulations also provide that an employee's meal periods are compensable only “when such time is spent predominantly for the benefit of the employer, rather than for the employee,” the court said.
That state regulation parallels the FLSA rule that carves out “bona fide meal time” from compensable work time, the court said.
The poultry workers acknowledge they can leave the plant during meal periods, although they must change their protective clothes within the workplace, the court said. “The meal break is for the employees' benefit,” the court said. “The clothes changing is incidental to their eating lunch.”
The state law's “predominance test” is analogous to an FLSA de minimis doctrine, the court said. An Illinois intermediate appeals court in Porter v. Kraft Foods Global Inc. (Ill. App. 2012) cited the Seventh Circuit's Sandifer opinion to apply the de minimis doctrine to “small amounts of time” the food workers in that case spent donning and doffing protective equipment, the court said.
“The question under Illinois law is whether the time spent during the half-hour meal break in changing clothes, corresponding to putting on and taking off the protective equipment in Sandifer, is de minimis,” the court said.
The state regulations have never been interpreted to require pay for employee changing time at the beginning and end of meal breaks, the court said.
“The Porter decision signals that the de minimis rule is alive and well in Illinois's law of employee compensation, and the rule is amplified by the predominance test in the [state] regulation,” Posner wrote. “And there is nothing to suggest that the Illinois Appellate Court in Porter thought it was creating new law.”
There's no reason to think the Illinois Supreme Court would disagree, as it denied review in Porter, the Seventh Circuit said.
In dissent, Wood said the Illinois statute provides a broader definition of “hours worked” than the FLSA, as pointed out by the state attorney general's office in an amicus brief.
“If the FLSA preempted contrary state laws, the fact that Illinois has chosen a different rule might be of no importance,” the dissent said. “But, to the contrary, the FLSA includes a savings clause that gives precedence to state laws with more generous compensation schemes.”
Wood said she would grant the state amicus's request to certify to the Illinois Supreme Court the question of whether the poultry workers have a claim because the state law is interpreted differently than the FLSA.
“The question is an important one for both employers and workers in the state, and it thus stands a good chance” of meeting the state supreme court's certification criteria, Wood wrote.
The dissent acknowledged that based on Section 203(o) and the Supreme Court decision in Sandifer, the poultry workers lack an FLSA claim regarding time spent washing and changing clothes at the beginning and end of their workdays.
“Given the limitations of the FLSA, I would affirm to the extent that the employees pursue a federal right to exclude donning and doffing at the beginning and end of the workday, because section 203(o) permits the parties to make that a subject of collective bargaining,” Wood wrote.
But the majority defies the DOL's continuous workday rule by extending the Section 203(o) exception to a meal break that occurs in the middle of the “workday” and nothing in Sandifer supports a “de minimis” test making the employees' time non-compensable even if Section 203(o) does not apply, the dissent said.
The Seventh Circuit majority also exceeded an appropriate appellate role by conducting and citing a time experiment involving court employees to conclude the poultry workers spend only minimal time changing their clothes, Wood said.
Instead, the court should rule the plaintiffs raised a possible FLSA claim regarding time spent washing themselves and doffing and donning protective clothes during their meal breaks, the dissent said. The district court on remand should determine how much time is actually involved, the dissent said.
The employees' cleaning and clothing activities are not only potentially compensable under the FLSA but are mandated by federal food safety regulations, Wood said.
Jac A. Cotiguala in Chicago and James B. Zouras of Stephan Zouras LLP in Chicago represented the employees. Stephen Novack of Novack& Macey LLP in Chicago represented JCG Industries and Koch Foods. Jane E. Notz of the Illinois Office of the Attorney General in Chicago represented the state as amicus curiae.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/Rochell_Mitchell_et_al_v_JCG_Industries_et_al_Docket_No_1302115_7.
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