United States: Seventh Circuit Affirms Dismissal Of Donning And Doffing Suit By Unionized Workers

In Mitchell v. JCG Industries and Koch Foods, the Seventh Circuit Court of Appeals affirmed, in a two to one decision, the district court's dismissal of a lawsuit filed on behalf of unionized poultry processing plant workers who alleged they had not been compensated law for time spent donning and doffing protective and sanitary clothing at the start and end of their meal periods, in violation of the FLSA and Illinois wage law.

The time the workers spent changing before and after eating lunch was time taken out of their uncompensated meal breaks rather than out of the four-hour shifts that preceded and followed their meal periods. The plaintiffs did not dispute that their meal periods were bona fide meal periods, and instead contended that the time spent changing clothes was compensable because FLSA Section 3(o) only excludes from compensation "any time spent in changing clothes at the beginning or end of each workday. . . by the express terms of or by custom or practice under a bona fide collective-bargaining agreement." The plaintiffs argued that changing clothes at the beginning and end of the meal period was not "at the beginning or end" of the workday and thus not subject to the Section 3(o) exclusion. The majority disagreed, concluding that workers given a 30-minute meal period are "in effect working two four-hour workdays in an eight-and-a-half hour period." Writing for the majority, Circuit Judge Richard Posner found that "the identical considerations attend payment" for clothes changing time at meal periods as at the beginning or end of the workday. Further, the majority observed that meal periods did not have to be provided at all and that in the unionized setting whether such periods were provided or compensated was left to collective bargaining.

Noting that the U.S. Supreme Court had recently stated in Sandifer v. U.S. Steel Corp. that Section 3(o) provided that clothes changing time "is a subject appropriately committed to collective bargaining," Judge Posner stated that a narrow interpretation of Section 3(o) "disserves the interest of workers by narrowing the scope of collective bargaining and . . . setting a group of workers against their union." Judge Posner reasoned that there were "good practical reasons" why the union did not negotiate for making the clothes changing time compensable, including the practical difficulty of determining how much time had to be compensated.

The majority also found that it was "inconceivable" that the plaintiffs spent a "substantial measure" of their time on clothes changing at meal periods. The plaintiffs had estimated it took them 10 to15 minutes to change clothes, while the employer stated it took two to three minutes. Recognizing that the "there are limitations of the trial process as a method for finding certain types of fact," one of the majority judges conducted a "novel" experiment, videotaping three members of the court's staff donning and doffing the relevant clothing as if they were plant workers, and found that the process took less than 2 minutes. Judge Posner acknowledged that the result of the experiment was not "evidence," but rather was "information that confirms the common sense intuition" that donning and doffing would not "eat up half the lunch break."

The majority was mindful of the U.S. Supreme Court's comment in Sandifer that the de minimis doctrine "did not fit comfortably within" Section 3(o), and instead relied on a different aspect of Sandifer to support its ruling. In Sandifer, the Supreme Court looked at whether the "vast majority" of time at issue was spent on changing clothes to determine if the whole changing period was non-compensable. Similarly, in Mitchell, the majority found the "vast majority" of the meal period was not spent donning and doffing and thus was non-compensable time.

Finally, turning to Illinois state law, the majority found that the time spent donning and doffing during meal periods was de minimis, a rule that was "alive and well" under Illinois law.

In dissent, Circuit Judge Diane Wood stated that dividing the workday into two four-hour shifts was incompatible with the "continuous workday" concept in the DOL's regulations and that the majority had essentially rejected the DOL's interpretation of the FLSA without going through the "normal analysis" to justify disregarding the DOL's longstanding interpretation. Because clothes changing at the meal period is part of the continuous workday, Judge Wood reasoned, unions "cannot bargain away worker compensation for mid-day breaks." It remains to be seen whether other Circuit Courts of Appeal will apply the "continuous workday" concept in similar situations.

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