United States: Wisconsin Supreme Court Split Over Hormel Wage And Hour Claims

Yesterday, the Wisconsin Supreme Court issued its long-awaited decision in UFCW v. Hormel Foods Corp., 2016 WI 13 (March 1, 2016). Unfortunately, many are wondering if the decision will provide useful guidance for Wisconsin employers on the application of two significant wage and hour concepts: (i) whether certain activities are preliminary and/or postliminary, such that the activities need not be included in an employee's work time for compensation purposes, and (ii) does Wisconsin recognize the de minimis doctrine, and when would (or might) time spent in an otherwise compensable activity be deemed de minimis so that the time need not be compensated? Before turning to how the Wisconsin Supreme Court dealt with these two concepts, a basic understanding of the underlying case facts and issues is necessary.


Hormel Foods owns and operates a cannery in Beloit. At that facility, Hormel mainly prepares, cans, and ships "shelf-stable" canned goods, including Hormel Chili, Mary Kitchen Hash, and Chi-Chi's Salsa. According to the description provided by Justice Gableman in his opinion, "[the manufacturing] process [at the Beloit facility] is largely assembly like: outside suppliers deliver raw product in a receiving area; the product is cooked; the cooked product is placed into a can or glass container; and the canned product is sent through a final heating process[, which is] ... called '12-D cook' for canned products or 'acidification' for glass products, that renders the product shelf-stable." The employees involved in production are required to wear hardhats, hearing protection, eye protection, hair nets (and beard nets if they have facial hair), shoes (that may not be taken out of the facility) and clean clothes that are provided by Hormel (commonly referred to as "whites"). The whites and other items are "donned" (put on) at the start of the employee's shift, and "doffed" (taken off) at the end of their shift. Some employees may also don and doff the whites and items at the start and end of their meal period if they plan on leaving the facility during their lunch break. All of the production employees are represented by the United Food and Commercial Workers Union (UFCW).

Hormel does not compensate the production employees for the time spent donning and doffing their whites and other items; rather, after employees change, they normally clock in on their way to their work station, and clock out after their shift ends before returning to their locker rooms to doff their whites and other items. The plaintiff-employees (led by the UFCW) commenced an action seeking compensation for the time spent donning and doffing before and at the end of their work shifts, as well as for time spent donning and doffing during their meal periods to the extent it prevented them from enjoying a full 30-minute meal break.

Prior to trial, which was presented to a judge (as opposed to a jury) to decide, Hormel and the plaintiffs agreed that the amount of time spent donning and doffing at the beginning and end of each shift, for which they were seeking compensation, was 5.7 minutes per day per employee. When the 5.7 minutes were added up for each employee throughout the relevant time period, and overtime calculations were taken into account, the plaintiffs alleged that Hormel owed them approximately $180,000 in unpaid wages. In addition, they agreed that the amount of "lost pay" for meal period time totaled $15,000.

Hormel made two primary arguments upon which it relied when asserting that it did not owe the plaintiffs for the donning and doffing time at issue: (1) that the donning and doffing at the beginning and end of each shift were non-compensable preliminary and postliminary activities, and (2) even if the activities constituted compensable work time, in this case it was not compensable due to the application of the de minimis doctrine. Unfortunately for Hormel, the trial court disagreed, concluding that the donning and doffing was integral and indispensable to the employees' food production activities, and therefore could not be viewed as non-compensable preliminary or postliminary activities, and that Hormel had failed to carry its burden to establish the application of the de minimis doctrine.

Hormel appealed to the Wisconsin Court of Appeals, which certified the two issues for resolution by the Wisconsin Supreme Court.

What the Wisconsin Supreme Court Did

As even casual observers likely know, the Justices on the Wisconsin Supreme Court do not always agree with one another. That fact is apparently also true when it comes to interpreting and applying the two wage and hour concepts at issue in Hormel.

The Wisconsin Supreme Court has seven Justices. Of the seven, one Justice – Justice Rebecca Bradley – did not participate. The six remaining Justices split off into three distinct "camps" of two Justices a piece, and the court issued three separate opinions. The camps are identified by the author of the respective opinion: (i) Justice Abrahamson (with whom Justice Ann Walsh Bradley joined), (ii) Chief Justice Roggensack (with whom Justice Prosser joined), and (iii) Justice Gableman (with whom Justice Ziegler joined).

The Roggensack and Gableman camps both agreed that the meal period claim could not be sustained; albeit for different reasons. As such, the meal period claim was extinguished. The Abrahamson camp disagreed, and would have sustained the meal period claim.

The Abrahamson and Roggensack camps agreed that the donning and doffing activities at the Hormel facility were not preliminary nor postliminary activities; rather, they were integral and indispensable activities to the plaintiffs' food production jobs, and therefore were compensable activities. (The Gableman camp disagreed with this conclusion.) Further, both the Abrahamson and Roggensack camp agreed that, at least in this instance, the de minimis doctrine did not apply. (Again, the Gableman camp disagreed.) As such, Hormel was liable to the plaintiffs for the time at issue (5.7 minutes per day for each employee). Interestingly, however, although agreeing in the outcome – that the plaintiffs are owed for the donning and doffing time at issue at the beginning and end of each work day – the Roggensack camp did not agree with the Abrahamson camp's conclusion on how or when the de minimis doctrine would normally apply. (And, the Gableman camp did not agree with either camp's interpretation on this issue either.)

Preliminary/Postliminary Activities

As noted above, both the Abrahamson and Roggensack camps concluded that the donning and doffing activities at the beginning and end of each work shift were not preliminary or postliminary activities, and therefore, such activities were compensable. They reached that opinion because the donning and doffing, according to the conclusion reached by the trial judge (with which they agreed), were necessary to bring Hormel into compliance with applicable federal food and safety regulations and, were therefore, "integral and indispensable to sanitation and safety in the employees' principal work activities, namely food production." As Justice Abrahamson stated:

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.

Justice Gableman disagreed, principally based on an assertion that the Abrahamson and Roggensack camps' opinion was premised on a wrong assumption: that the whites and items were required to be worn in order to produce safe and sanitary food. Justice Gableman noted that since the final cooking phase to prepare the shelf-stable products involved cooking the products in the cans or acidification in the bottles, there was no actual sanitary need for production employees to be in anything other than street clothes. Rather, the requirement to wear whites was simply an employer requirement – but because it was not necessary for actual production purposes, then the donning and doffing were not "integral" and "indispensable" to the food production. Accordingly, he and Justice Ziegler would have concluded that the donning and doffing at issue were non-compensable, preliminary and postliminary activities.

While there is an apparent disagreement between the various camps on the principal facts and their impact on what was or was not necessary for the production of safe and sanitary food, it does appear that all of the Justices would have agreed that if the donning and doffing of the clothing and items were necessary to allow for safe and sanitary food production, then such donning and doffing would also have been integral and indispensable, and therefore would constitute compensable work time. While not perfect, this does provide employers with some guidance on the application/determination of what is and what is not preliminary or postliminary activities in the food manufacturing industry in Wisconsin. Unfortunately, the same cannot be said with respect to the various opinions as they relate to the application of the de minimis doctrine.

The De Minimis Doctrine

As noted above, both the Abrahamson and Roggensack camps concluded that the de minimis doctrine did not apply to the donning and doffing time. However, they did so for different reasons.

The Abrahamson camp concluded that the de minimis doctrine would not apply, if recognized under Wisconsin law (on which it did not opine), because the aggregate amount at stake was not a "trifle." Rather, the average plaintiff employee was "out" approximately $500 per year, an amount which the Justice concluded was "certainly significant" to an employee.

The Roggensack camp seemingly would have concluded the de minimis doctrine would have applied in the Hormel case but for the fact that the parties had stipulated to the amount of time at issue – i.e., 5.7 minutes per employee per day. According to the Roggensack camp, if the amount of time had not been stipulated, "it would appear to be almost an administrative impossibility to [determine the amount of time spent each day by each employee] accurately." Therefore, the Roggensack camp would have found the time de minimis even if the aggregate amount was not a trifle.

The Gableman camp suggested that both of the other camps were wrong to lend any focus to the "aggregate" amount at issue, and the proper determination was whether the matter involved seconds or minutes of unscheduled work, which could legally be ignored as trifles. Since the amount of time at issue was 2.903 minutes on average (the difference to 5.7 minutes being the amount of time necessary to walk to the production area after donning or before doffing), Justices Gableman and Ziegler would have applied the de minimis doctrine to find the donning and doffing time non-compensable.

Unfortunately, the import of the three opinions when it comes to the application of the de minimis doctrine is difficult to gauge. Because none of the three opinions address the same issues in reaching their conclusions, it remains unclear how the Justices may resolve a question on the application of the doctrine if involving slightly different facts or arguments. Therefore, Wisconsin employers still lack any direct guidance on whether the de minimis doctrine exists in the first instance in Wisconsin, and secondly, if it does exist, how or when it should be applied.


Wage and hour claims are the most frequently pursued employment claims in our society today. Whether it be claims based on alleged misclassification (exempt v. non-exempt status) or off-the-clock work (such as donning and doffing claims), some additional guidance on two prominent concepts in this arena would have been useful. Unfortunately, the Hormel decision may not provide the sort of guidance many Wisconsin employers can utilize.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.