SHEILA HELMERT, WILMA BROWN, аnd LORI WEST, on behalf of themselves and others similarly situated, PLAINTIFFS v. BUTTERBALL, LLC, DEFENDANT; ROXIE GARNER, ROY GARNER, JASON FOSTER, MIGUEL ANGUIANO ARAUJO, CHRISTOPHER SMITH, JOHN SNARR, and JAMES ROLLINS, on behalf of themselves and others similarly situated, PLAINTIFFS v. BUTTERBALL, LLC, and GARY R. LENAGHAN, DEFENDANTS
No. 4:08CV00342 JLH; No. 4:10CV01025 JLH
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION
July 27, 2011
J. LEON HOLMES, UNITED STATES DISTRICT JUDGE
Document 435
The parties have filed cross motions for partial summary judgment in the related cases of Helmert v. Butterball, No. 4:08CV00342 JLH, and Garner v. Butterball, No. 4:10CV01025 JLH. For the following reasons, the plaintiffs’ motion for partial summary judgment is granted in part, and the defendants’ motion for partial summary judgment is denied.
I.
A court should enter summary judgment if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.
II.
Under the Fair Labor Standards Act, an employer must pay its employees a minimum wage for forty hours of work each week.
[t]he United States Supreme Court originally stated that employees subject to the [FLSA] must be paid for all time spent in “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” (Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 U. S. 590[, 64 S. Ct. 698, 88 L. Ed. 949] (1944)) Subsequently, the Court ruled that there need be no exertion at all and that all hours are hours worked which the employee is required to give his
employer . . . . (Armour & Co. v. Wantock, 323 U.S. 126[, 65 S. Ct. 165, 89 L. Ed. 118] (1944); Skidmore v. Swift, 323 U.S. 134[, 65 S. Ct. 161, 89 L. Ed. 124] (1944)).
In the year following Mount Clemens, Congress passed the Portal-to-Portal Act, amending certain provisions of the FLSA and narrowing the coverage of the FLSA “by excepting two activities that had been treated as compensable under [prior caselaw]: walking on the employer‘s premises to and from the actual place of performance of the principal activity of the employee, and activities that are ‘preliminary or postliminary’ to that principal activity.” IBP, Inc. v. Alvarez, 546 U.S. 21, 27, 126 S. Ct. 514, 520, 163 L. Ed. 2d 288 (2005); see
Accordingly, to the extent that activities engaged in by an employee occur after the employee commences to perform the first principal activity on a particular workday
Under the FLSA, the “workday” is “the period between the commencement and completion on the same workday of an employee‘s principal activity or activities.”
If an employee in a chemical plant, for example, cannot perform his principal activities without putting on certain clothes, changing clothes on the employer‘s premises at the beginning and end of the workday would be an integral part of the employee‘s princiрal activity. On the other hand, if changing clothes is merely a convenience to the employee and not directly related to his principal activities, it would be considered as a “preliminary” or “postliminary” activity rather than a principal part of the activity.
In light of this understanding of what constitutes compensable work under the FLSA, the relevant regulations, and case law, the Court will address each of the cross motions for partial summary judgment in turn.
III.
In their motion for partial summary judgment, the plaintiffs contend that the undisputed facts establish that donning and doffing smocks at Butterball‘s Ozark and Huntsville plants are integral and indispensable to the principal duties of the production employees at those plants.1
“[A]ctivities performed either before or after the regular work shift,” the Supreme Court has noted, are compensable “if those activities are an integral and indispensable part of the principal activities.” Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 100 L.Ed. 267 (1956); see also Mitchell v. King Packing Co., 350 U.S. 260, 261, 76 S.Ct. 337, 100 L.Ed. 282 (1956);
29 C.F.R. § 790.7(h) (1999) (“[A]n activity which is a ‘preliminary’ or ‘postliminary’ activity under one set of circumstances may be a principal activity under other conditions.“).The Supreme Court‘s approach to this “principal,” “integral and indispensable” duty question is context-specific. To be “integral and indispensable,” an activity must be necessary to the principal work performed and done for the benefit of the employer. See Barrentine v. Arkansas-Best Freight Sys., Inc., 750 F.2d 47, 50 (8th Cir.1984), cert. denied, 471 U.S. 1054, 105 S.Ct. 2116, 85 L.Ed.2d 480 (1985); Dunlop v. City Elec., Inc., 527 F.2d 394, 398 (5th Cir.1976).
Alvarez v. IBP, Inc., 339 F.3d 894, 902-03 (9th Cir. 2003), aff‘d, 546 U.S. 21, 126 S. Ct. 514, 163 L. Ed. 2d 288 (2005). Courts generally consider three factors to determine whether activities performed before or after the regular work shift are integral and indispensable: (1) whether the
Consideration of these factors necessarily involves factual determinations. See Bernard v. IBP, Inc. of Neb., 154 F.3d 259, 265 (5th Cir. 1998) (“Whether meal time is predominantly for the benefit of the employer is a question of fact that is ordinarily resolved by the trier of fact after hearing all of the evidence.“); Ruffino v. North Slope Borough, No. 92-36866, 1994 WL 201174, at *3 (9th Cir. May 23, 1994) (“[W]hether time is spent predominantly for the employer‘s benefit . . . is a question of fact . . . .“) (internal citations omitted); Rodriguez v. Carey Intern., Inc., Nos. 03-22442-CIV, 03-22752-CIV, 03-22962-CIV, 03-22963-CIV, 03-23211-CIV, 04-21074-CIV, 04-21104-CIV, 2004 WL 5582173, at *4 (S.D. Fla. Sept. 15, 2004) (refusing to grant judgment as a matter of law on the compensability of certain activities because “[t]here is a factual question as to the regularity of the activities, whether the employer required some of these actions, or whether the employee performed them for his оwn benefit“); Jerzak v. City of South Bend, 996 F. Supp. 840, 847 (N.D. Ind. 1998) (stating that whether an activity was reasonably necessary was a question of fact for the jury).
As with any other type of case, however, when the material facts are not in dispute, a court may grant summary judgment on the issue of whether a particular activity is integral and indispensable to the employees’ principal job duties.2 See Ballaris, 370 F.3d at 910 (the nature of
In this case, the parties have stipulated to the relevant facts regarding the donning and doffing of smocks. The smocks at issue are single-layered cloth, white shirts that tie in the front. They have three-quarter length sleeves, are permeable, and provide no insulation. Before the shift begins, a production employee must obtain a clean, laundered smock from the supply window. An employee is not allowed to wear a smock that was worn on the previous work day, even if the smock is not noticeably soiled. During each break, the employee stores the smock on a hook and dons the same smock again when the break is concluded, unless the smock is soiled enough to warrant obtaining a new one. At the end of each shift, the еmployee deposits the used smock in a bin located near the exits to the production areas.
Butterball‘s employee handbook requires production employees to comply with Butterball‘s Good Manufacturing Processes, which are used to ensure food safety and the quality of Butterball‘s
Based on these facts, the plaintiffs argue that there is no genuine issue of material fact as to whether donning and doffing the smocks are integral and indispensable to the principal job duties of Butterball‘s production employees. In other words, the plaintiffs contend that wearing smocks is (a) required by Butterball, (b) necessary for the employee to perform his or her duties, and (c) primarily for the benefit of Butterball. “An act is necessary to a principal activity if that act is required by law, by company policy, or by the nature of the work performed.” Perez v. Mountaire Farms, Inc., Nos. 09-1917 and 09-1966, 2011 WL 2207110, at *7 (4th Cir. Jun. 7, 2011) (citing Alvarez, 339 F.3d at 903). Here, thе parties have stipulated that Butterball, pursuant to its Good Manufacturing Processes, requires employees to don and doff smocks; thus, donning and doffing
As evidenced by Butterball‘s training materials, Butterball‘s handbook, and the deposition testimony of Butterball managers, the smocks’ primary purpose—and the reason Butterball requires them—is food safety. Although smocks also help protect employees’ clothes, it cannot reasonably be denied that donning and doffing smocks primarily benefit Butterball. As Judge Trauger has explained:
The defendants do not dispute that the purpose of the frock is to maintain sanitary conditions on the production floor and to prevent the defendants’ product from becoming contaminated. The defendants argue, however, that the frocks also benefit the plaintiffs by keeping their street clothes from becoming dirty. Though it is perhaps the case that the frocks provide a benefit to the plaintiffs, that does not alter the fact that the reason the defendants require their employees to wear frocks is motivated not by the employees’ needs, but rather by the defendants’ need to maintain a sanitary production floor. Moreover, although the frocks are not specifically required by federal law, their use enables the defendants to meet federal regulations requiring employees to wear clean garments and the company to maintain hygienic practices on the production floor. Additionally, the court is unpersuaded by a recent district court ruling on which the defendants rely (Docket No. 258), in which the plaintiffs’ summary judgment motion was denied on the grounds that there were factual questions as to whether the employer reaped the “primary benefit” of donning and doffing, though it was clear that the employer reaped “some benefit.” Chao v.
Jordan v. IBP, Inc., 542 F. Supp. 2d 790, 807 (M.D. Tenn. 2008) (emphasis in original). Food safety is, or should be, the paramount concern in every facility that processes meat. As Judge Trauger notes, federal regulations require production employees to wear clean garments at the beginning of each day and to change as often as necessary to prevent food contamination.5 Butterball‘s Good Manufacturing Processes—including the requirements that an employee don a clean smock onsite at the beginning of each day and doff the smock onsite for cleaning at the end of each day—are designed to address the paramount concern of food safety and to comply with federal regulations. No reasonable jury could find that an activity essential to prevent food contamination in a poultry processing plant primarily benefits the employees of the plant rather than the employer. See Perez, 2011 WL 2207110, at *8 (because of the importance of protective gear in ensuring the safety and sanitation of chicken processing, donning and doffing primarily benefit the employer); Franklin v. Kellogg Co., 619 F.3d 604, 620 (6th Cir. 2010) (“[B]ecause the uniform and equipment ensures sanitary working conditions and untainted products,” donning and doffing primarily benefit the employer.); Ballaris, 370 F.3d at 911 (donning and doffing uniforms held compensable because the uniforms were necessary to limit contamination and to ensure the quality of the product); Hoyt v. Ellsworth Co-op. Creamery, 579 F. Supp. 2d 1132, 1141 (W.D. Wis. 2008) (donning and doffing
Based on the stipulated facts, the plaintiffs are entitled to summary judgment on the claim that donning and doffing of smocks by production employees at Butterball‘s Huntsville and Ozark plants are integral and indispensable to the principal activities of those employees. Consequently, donning and doffing of smocks by those employees are not excluded from compensation under the FLSA by the Portal-To-Portal Act.6
The plaintiffs have also requested the Court to rule on several hypothetical questions, urging that a ruling on those questions would assist the parties in reaching a settlement, but the Court declines to give an advisory oрinion answering hypothetical questions. Cf. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S. Ct. 461, 464, 81 L. Ed. 2d 617 (1937) (distinguishing a justiciable controversy from “an opinion advising what the law would be upon a hypothetical state of facts“); State of Minn. v. U.S. Steel Corp., 438 F.2d 1380, 1384 (8th Cir. 1971) (refusing to address issues not yet ripe even though doing so might hasten settlement and avoid lengthy, expensive litigation). Therefore, the plaintiffs’ motion for partial summary judgment is granted in part and denied in part.
It is undisputed that Butterball compensates its employees for six minutes per day for donning and doffing, regardless of the amount of time that the employees actually spend doing so. Butterball contends that the six minutes per day is a reasonable amount of time for donning and doffing.7 Butterball refers to this mode of payment as “plug time.” In its motion for summary judgment, Butterball asks the Court to dismiss all of the plaintiffs’ claims for time other than a fixed, reasonable amount of time to conduct donning-and-doffing-related activities. In other words, Butterball asks the Court to determine as a matter of law that a plug time method of payment complies with the FLSA and the Arkansas Minimum Wage Act.8 The Court declines to do so.
It is clear from the Supreme Court‘s decision in Alvarez that employers are to record and pay employees for actual hours worked—in other words, all of the time between an employee‘s first principal activity and last principal activity that is not otherwise excluded under the Act.9 See supra
Butterball argues to the contrary. Butterball first contends that it may compensate employees for reasonable or average time worked rather than actual time. Butterball cites to a number of cases in which courts calculated back pay awards for employees based upon reasonable estimates of the amount of time that it took the employees to perform the compensable work at issue. See Tum v. Barber Foods, Inc., 360 F.3d 275, 283 and n.7 (1st Cir. 2004) (finding no fault with a jury instruction that asked the jury how much time was “reasonably required” to perform the compensable work), rev‘d on other grounds, Alvarez, 546 U.S. 21, 126 S. Ct. 514; Reich v. IBP, Inc., No. 88-2171, 1996 WL 137817, at *2-3 (D. Kan. Mar. 21, 1996) (determining the reasonable
When the employer has failed to record compensable time and the employees have proved that they actually performed the work in question, the plaintiffs need only produce evidence sufficient to support a reasonable inference of the amount and extent of that work. Mount Clemens, 328 U.S. at 687, 66 S. Ct. at 1192. “The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee [s‘] evidence.” Id. at 687-88, 66 S. Ct. at 1192-93.
Metzler v. IBP, Inc., 127 F.3d 959, 965-66 (10th Cir. 1997). In a case such as this one, it is impossible to determine the actual time that each plaintiff spent in compensable donning-and-doffing-related activities over a two or three year period when the employer failed to keep a record of that time. Cf. Alvarez, 339 F.3d at 914 (upholding the district court‘s compensation measure based on “reasonable” time, “thereby avoiding countless individual plaintiff-specific quagmires while directing the parties to individualize the damage measure to the extent possible nevertheless“). More often than not, such awards may be based on a reasonable estimate of the time that employees were engaged in the compensable activities.10
However, those cases do not stand for the proposition that under the FLSA employers need not compensate employees for all of the time that they actually worked. In Reich v. IBP, Inc., the Secretary of Labor brought an action against IBP alleging that it had violated the overtime and
On appeal, the Tenth Circuit affirmed the district court‘s conclusion that employees should be paid on the basis of reasonable time to conduct the compensable activities rather than on the basis of the actuаl time it took them to conduct the activities. Reich v. IBP, Inc., 38 F.3d 1123, 1127 (10th Cir. Cir. 1994). After the second phase of trial, the court concluded that a company-wide injunction was appropriate. Reich v. IBP, Inc., No. 88-2171-EEO, 1996 WL 445072, at *1 (D. Kan. Jul. 30, 1996). The injunction ordered IBP to implement within ten days recordkeeping practices that would record the time spent by each employee in performing compensable pre-shift and post-shift activities. Id. On appeal, the Tenth Circuit upheld the injunction. Metzler, 127 F.3d at 965. Discussing the Reich cases, one district court opined:
The court‘s method of reaching the “reasonable average” does not suggest that reasonable time spent in a compensable activity and actual time spent in a compensable activity are mutually exclusive concepts, nor does it absolve IBP from recording and compensating employees for actual time spent in these activities. Rather, the court observed that “[d]efendant will be required to record and compensate for time spent in compensable activities under its present working conditions.” [citation omitted] Furthermore, the injunction explicitly states that “Defendant shall implement recordkeeping practices sufficient to record the time spent by each employee in performing the pre-shift and post-shift activities found to be compensable under the Act.” (Docket No. 60, Ex. 9, Injunction ¶ 3) (emphasis
Jordan, 2004 WL 5621927, at *13; see also Garcia, 474 F. Supp. 2d at 1248 (“Other statements made by the trial court in Reich further suggest that the court intended defendants to compensate . . . employees for the reasonable time spent donning and doffing only until such time as defendants began recording the actual time spent by employees in performing these activities.“). Although damages may be awarded on a reasonable basis, as explained in Jordan v. IBP, Inc., the FLSA requires employers to compensate their employees for actual hours worked.
Butterball also relies heavily upon a U.S. Departmеnt of Labor Field Operations Handbook that authorizes employers to “set up a formula by which employees are allowed given amounts of time to perform clothes changing and washup activities, provided the time set is reasonable in relation to the actual time required to perform such activities.” Dept. of Labor Wage and Hour Division, Field Operations Handbook § 31b01a (Sept. 19, 1996), available at http://www.dol.gov/whd/FOH/index.htm. Butterball argues that the Department of Labor provides for plug time payments through this handbook provision and, thus, has not rejected the practice as a matter of law. Like opinion letters, administrative handbooks do not bind the courts, though they can be persuasive. Myers v. Copper Cellar Corp., 192 F.3d 546, 554 (6th Cir. 1999). The handbook section cited above is unpersuasive. First, it appears that section 31b01a is a subpart to sеction 31b01, which explains whether clothes changing and washup activities are compensable in the context of a collective bargaining agreement when the agreement makes no mention of the practice.
Even if the Court were to agree with Butterball on this point, however, the section is unpersuasive for other reasons. In January of 2001, the Administrator of the Wage and Hour Division of the Department of Labor issued an opinion letter stating that a company must record and pay for each employee‘s actual hours of work. The letter stated that “in order to comply with the FLSA and its implementing regulations . . . a company must record and pay for each employee‘s actual hours of work . . . .” U.S. Department of Labor Wage & Hour Division, FLSA Opinion Letter, 2001 WL 58864 (Jan. 15, 2001) (emphasis added). The letter makes clear that “the [Department of Labor] . . . [has] rejected the average time concept used by the defendant[s].” Lopez v. Tyson Foods, Inc., No. 8:06CV459, 2007 WL 1291101, at *3 (D. Neb. Mar. 20, 2007). The defendants argue that the opinion letter is an advisory memorandum with no legal authority. See Christensen v. Harris Cty., 529 U.S. 576, 587, 120 S. Ct. 1655, 1663, 146 L. Ed. 2d 621 (2000). Still, the letter is “entitled to respect” to the extent that it has the power to persuade. Id. (citing Skidmore, 323 U.S. at 140, 65 S. Ct. at 164).12 As to its definition of the term “work” as used in the FLSA, the opinion letter is persuasive and supported by the regulations and case law.
In each of its arguments against recording and paying employees for their actual hours of work, Butterball fails to make a critical distinction: while a back pay award may be based on a reasonable estimate of the actual time spent in donning and doffing when the employer has failed
Finally, Butterball argues that even if employees must be compensated for actual hours spent in compensable, donning-and-doffing-related activities, the number of actual hours an employee works does not necessarily include all of the time between the employee‘s first and last principal activities. In support of its argument, Butterball cites to Anderson v. Wackenhut Corp., No. 5:07CV137-DCB-JMR, 2008 WL 4999160 (S.D. Miss. Nov. 19, 2008), an unpublished opinion in which the court considered whether time spent waiting is compensable as a matter of law when the waiting occurs between an employee‘s first and last principal activities. The district court in Anderson concluded that the continuous workday doctrine alone does not make all time between an employee‘s first and last principal activities compensable. 2008 WL 4999160, at *6. The court based this conclusion on the Supreme Court‘s holding in Alvarez, which it interpreted to mean that post-donning walking time is compensable not because it occurs during the continuous workday but because it primarily benefits the employer. In fact, Alvarez makes clear that walking time and waiting time that occur during the continuous workday are compensable regardless whether they benefit the employer. Alvarez, 546 U.S. at 40, 126 S. Ct. at 527 (“[T]he Court of Appeals was incorrect with regard to the predoffing waiting time. Because doffing gear that is ‘integral and indispensable’ to employees’ work is a ‘principal activity’ under the statute, the continuous workday rule mandates that time spent waiting to doff is . . . covered by the FLSA.“); see also Perez, 610 F. Supp. 2d at 522 (“[D]uring a continuous work day, any walking time that occurs after the beginning of the employee‘s first principal activity and before the end of the employee‘s last principal activity is . . . covered by FLSA.“).
Several of the jury instructions cited by Butterball14 apply the continuous workday doctrine as stated in Alvarez to other donning and doffing cases. In Solis v. Tyson Foods, Inc., the district court instructed the jury that “[t]ime spent after the employee engages in the first principal activity and before the employee finishes his or her last principal activity is part of a continuous workday and is compensable under the Fair Labor Standards Act, unless it is otherwise excluded from compensation . . . .” (Defs.’ S.J. Mot. Ex. B; Helmert ECF No. 389.) Similarly, in Brothers v. Tyson Foods, Inc., the jury was instructed that the employer did not have to compensate the employee “for any activity that was performed before she started washing items at the beginning of the work day” or “for any activity that was performed after she completed washing and drying items at the end of the workday.” (Defs.’ S.J. Mot. Ex. D; Helmert ECF No. 389.) These instructions indicate that the continuous workday doctrine includes all of the time spent between an employee‘s first and last principal activities, unless that time is otherwise excluded under the FLSA.
Butterball makes a pragmatic argument against this interpretation of the continuous workday doctrine. Butterball contends that, if all of the time during the continuous workday is compensable, then an employee could arrive at the plant long before the shift begins, engage in a principal activity, sit idly in the cafeteria until the shift begins, and then demand compensation for that time. See Albanese v. Bergen Cty., N.J., 991 F. Supp. 410, 423-24 (D.N.J. 1997) (noting the concern that employees might attempt to pad their hours or shirk their responsibilities if they are not required to
[I]t is the duty of management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.
Although the FLSA requires employers to compensate employees for their actual hours worked, which are measured according to the continuous workday, it is yet to be determined whether the plaintiffs are entitled to any recovery. In order to recover, the plaintiffs will have to establish that they were paid less than minimum wage for any hours worked up to forty hours per week or that they were compensated at a rate less than time and a half for hours worked in excess of forty hours per week.
For the reasons stated above, the plaintiffs’ motion for partial summary judgment is GRANTED in part and DENIED in part. The defendants’ motion for partial summary judgment is DENIED. Helmert ECF Nos. 367 and 387; Garner ECF Nos. 74 and 76.
IT IS SO ORDERED this 27th day of July, 2011.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE