United Food & Commercial Workers Union, Local 1473, Dennis A. Warne, Charles R. Seeley and Pamela Collins Plaintiffs-Respondents,
Hormel Foods Corporation, Defendant-Appellant
Oral Argument October 5, 2015
APPEAL from a judgment and order of the Circuit Court for Rock County, Michael R. Fitzpatrick, Judge. (L.C. No. 2010CV2595).
For the defendant-appellant, there were briefs by Thomas P. Krukowski and Whyte Hirschboeck Dudek, S.C., Milwaukee, and oral argument by Thomas P. Krukowski.
For the plaintiffs-respondents, there was a brief by Mark A. Sweet and Sweet and Associates, LLC, Milwaukee, and oral argument by Mark A. Sweet.
SHIRLEY S. ABRAHAMSON, J. ROGGENSACK, C.J.¶ROSSER, J., concur and dissent. Gableman, Ziegler, J.J., dissent. R.G. Bradley, J., did not participate.
SHIRLEY S. ABRAHAMSON,
[367 Wis.2d 134] [¶1] 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 individuals), the plaintiffs, [367 Wis.2d 135] 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] 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 postliminary activities under Wis. Admin. Code § DWD 272.12(2)(e) (Feb. 2009); 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?
[367 Wis.2d 136] [¶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:
(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 [367 Wis.2d 137] the employees' principal work activities, namely food production.
(2) The donning and doffing of clothing and equipment at ...