United Food & Commercial Workers Union, Local 1473 v. Hormel Foods Corp.

876 N.W.2d 99

Wis.

2016

Check Treatment

UNITED FOOD & COMMERCIAL WORKERS UNION, LOCAL 1473, DENNIS A. WARNE, CHARLES R. SEELEY AND PAMELA COLLINS, PLAINTIFFS-RESPONDENTS, v. HORMEL FOODS CORPORATION, DEFENDANT-APPELLANT.

No. 2014AP1880

Supreme Court

Decided March 1, 2016

2016 WI 13

(Also reported in 876 N.W.2d 99.)

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.

¶ 1. SHIRLEY S. ABRAHAMSON, J. 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 individuals¹), the plaintiffs,

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

¶ 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)³; 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?

¶ 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

the employees’ principal work activities, namely food production.⁴

(2) The donning and doffing of clothing and equipment at the beginning and end of the day does not fall within the doctrine of de minimis non curat lex. The wages involved are not a “trifle” either for the employees or for Hormel.

¶ 8. We also briefly address whether the time spent donning and doffing Hormel‘s required clothing and equipment during meal periods is considered compensable work time.

¶ 9. On appeal Hormel argues that the Tyson Foods case was wrongly decided and “puts state law at odds with federal authority, namely, with the U.S. Supreme Court‘s holding” in a recent decision, Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513 (2014). As a result, Hormel asks us to overturn Tyson Foods. We conclude that the discussion in Tyson Foods relating to compensating its employees for time spent donning and doffing the required clothing and equipment at the plant at the beginning and end of the day does not contravene Integrity Staffing.

¶ 10. The parties stipulated to many facts, and the circuit court also made numerous findings of fact following a bench trial. None of the circuit court‘s findings of fact are clearly erroneous. Here are the relevant facts.

¶ 11. The class consists of approximately 330 persons who are or were hourly employees of Hormel at the Beloit canning facility. We will refer to the class members as “the employees.”

¶ 12. Hormel is a multi-national food company incorporated in Delaware and headquartered in Austin, Minnesota. The Union agreed that Hormel is a fine employer with a quality record and a history of producing good, safe food for customers around the world.

¶ 13. Hormel‘s Beloit canning facility prepares, cooks, cans, and ships a variety of “shelf stable” products including Hormel Chili, Mary Kitchen Hash, and Chi-Chi‘s Salsa, primarily for sale to consumers in retail stores. A “shelf stable” product can be stored almost indefinitely and without refrigeration.

¶ 14. The Beloit canning facility operates like an assembly line. Raw ingredients enter at one end of the facility and are stored in a cooler or dry storage. Products (which may consist of meat and seasoning ingredients) are out in the open in about one-half of the plant.

¶ 15. Employees grind and blanch the meat, and cook and can the product. A sophisticated, high-temperature, heavy-pressure process is used to make the product shelf stable. The product is moved to areas designated for pickup to ship to distribution centers or retailers.

¶ 16. Regulations promulgated by the United States Department of Agriculture (USDA), the United States Food and Drug Administration (FDA), and the federal Occupational Safety and Health Administration (OSHA) govern Hormel‘s production facilities. Products containing meat are regulated by the United States Department of Agriculture Food Safety Inspec-

tion Service. Products not containing meat are regulated by the United States Food and Drug Administration. The federal Occupational Safety and Health Administration regulates workplace safety.

¶ 17. Federal regulations require Hormel to meet standards of cleanliness, quality, and safety in its plant and products. For example, the federal regulations require that persons working with food protect against contаmination of food by maintaining hygienic practices like washing hands and wearing clean outer garments. While the federal regulations set forth performance standards, they generally do not require these standards be satisfied in any particular manner.

¶ 18. Hormel has adopted Work Rules in an effort to meet performance standards, maintain sanitation, and protect employees and consumers. The Work Rules require that employees wear certain clothing and equipment. If employees do not wear the required clothing and equipment, the employees are subject to discipline, up to discharge.

¶ 19. Specifically, Hormel‘s Work Rules require employees wear Hormel-provided hard hats, hearing protection, and eye protection. All exposed head and facial hair must be covered by a hair net. Employees are to wear clean and sanitary footwear at all times.⁵ Clothing is provided by Hormel and must be changed daily or more often (as good sanitation practices dictate) and shall not be worn outside the plant. Hormel leases the clothes from Aramark, which picks up worn clothes, launders them, and drops off clean clothes.

¶ 20. Hormel does not compensate employees for time spent putting on or taking off (donning and doffing) the required clothing and equipment at the beginning and end of the day.

¶ 21. The parties stipulated that the median time for donning and doffing the required clothing and equipment at the beginning and end of the day, washing hands, and walking to and from the assigned work stations was 5.7 minutes pеr day, 28.5 minutes per week, or approximately 24 hours per year.⁶

¶ 22. The employees must “swipe in” between 1 and 29 minutes before the scheduled start of their shift. The employees must have their clothes changed, be swiped in, and be at their workstations at their assigned start times or they will be considered tardy.

The employees are paid by Hormel beginning at the scheduled start of their shift, not at the time of swiping in.

¶ 23. As a result, the employees are not paid for the time spent putting on their clothing and equipment before the scheduled start of their shift. The employees are also not paid for a 30-minute meal period. To leave the facility during the 30-minute meal period, the employees must doff their clothing and equipment before leaving the facility and don their clothing and equipment before returning to work.

¶ 24. Upon completion of the assigned duties for the day and after being released from work, the employees must “swipe out” and change back into their street clothes.

¶ 25. The employees are paid until they officially “swipe out.” Thereafter, the employees must change from their required clothing and equipment into their street clothes. As a result, the employees are not paid for the time spent taking off their clothing and equipment after they swipe out.

¶ 26. In sum, the paid “workday” for employees at Hormel is measured from the scheduled commencement of the shift to the swipe out at the electronic clock after release by the supervisor less 30 minutes for the employees’ meal period.

¶ 27. The circuit court fоund, on the great weight of the credible evidence, that putting on and taking off the clothing and equipment required by Hormel at the beginning and end of the day is integral and indispensable to the performance of the employees’ principal activities. According to the circuit court, a close connection exists between the donning and doffing; compliance with the federal regulations of the United States Department of Agriculture, the Food and Drug

Administration, and Occupational Safety and Health Administration; and the employees’ principal activities, producing canned food.

¶ 28. The standard of review applicable to the instant case is oft stated and is as follows:

¶ 29. This court will not overturn factual findings of the circuit court unless the findings are clearly erroneous. Royster-Clark, Inc. v. Olsen‘s Mill, Inc., 2006 WI 46, ¶ 11, 290 Wis. 2d 264, 714 N.W.2d 530.

¶ 30. The appeal revolves around the interpretation and application of Wis. Admin. Code § DWD 272.12. When interpreting administrative regulations the court uses the same rules of interpretation as it applies to statutes. Wis. DOR v. Menasha Corp., 2008 WI 88, ¶ 45, 311 Wis. 2d 579, 754 N.W.2d 95. Interpretation and application of a regulation is ordinarily a question of law that this court determines independently of the circuit court or court of appeals, but benefiting from the analysis of the other courts. State v. Brown, 2006 WI 131, ¶ 18, 298 Wis. 2d 37, 725 N.W.2d 262.

¶ 31. To determine the meaning of a regulation, we turn first to the text. Each word shall be interpreted so as to give it meaning, and none shall be treated as superfluous. See In re Guardianship of James D.K., 2006 WI 68, ¶ 16, 291 Wis. 2d 333, 718 N.W.2d 38. The context of the regulation and case law interpreting the regulation are also considered.

¶ 32. The parties dispute whether a circuit court‘s findings that an activity is integral and indispensable to the employees’ principal activities is a question of fact or a question of law. If the question is one of fact, this court will not overturn the factual findings of the circuit court unless the findings are clearly erroneous. Wis. DOR, 311 Wis. 2d 579, ¶ 45. If the question is one of law, this court decides the question independently while benefiting from the analyses of the circuit court and court of appeals. Wis. DOR, 311 Wis. 2d 579, ¶ 44; Brown, 298 Wis. 2d 37, ¶ 18.

¶ 33. The Union raised the issue of the standard of review in its response brief, relying on a treatise that states, without citation, that “[w]hether an activity is characterized as . . . ‘an integral and indispensable part’ of the employee‘s principal activities (as distinguished from preliminary or postliminary to those activities), is a question of fact to be determined from all the circumstances.”⁷

¶ 34. In reply, Hormel argued that the facts are undisputed and the interpretation and application of the regulations to undisputed facts is a question of law that the court decides independently of the circuit court or court of appeals.

¶ 35. We need not decide this issue. Whether we examine the questions certified as ones of fact or law, we conclude the circuit court reached the correct decision.⁸

work, and the burden would then shift to Hormel to demonstrate that the acts are noncompensable. Hormel disagreed with the Union‘s description of the burden of proof, although Hormel agreed that it had the burden of proof on the application of the de minimis doctrine.

The circuit court stated that the (undefinеd) burdens of proof were on the respective parties by the greater weight of the credible evidence. The circuit court viewed Hormel as having the burden of proof on the application of the de minimis doctrine.

In this court, neither party raises the issue of the allocation of the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍burdens of proof. As a result, we do not address the issue. See State v. Gracia, 2013 WI 15, ¶ 28 n.13, 345 Wis. 2d 488, 826 N.W.2d 87 (stating “we do not usually address undeveloped arguments“). Regardless of the allocation of the burdens of proof, we conclude the circuit court‘s decision was correct.

¶ 36. We examine first whether the time spent donning and doffing Hormel‘s required clothing and equipment at the beginning and end of the day is considered compensable work time or non-compensable preliminary and postliminary activities under Wis. Admin. Code § DWD 272.12(2)(e).

¶ 37. The Department of Workforce Development regulations determining an employee‘s work hours are found in Wis. Admin. Code § DWD 272.12.

¶ 38. Wisconsin Admin. Code § DWD 272.12(1)(a)1. provides that an employee must be paid “for all time spent ‘in physical or mental exertion . . . controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer‘s business.‘”⁹

Hormel; and are pursued necessarily and primarily for the benefit of Hormel‘s business.

¶ 40. Compensable time is defined in the regulations in terms of a “workday.” See Wis. Admin. Code § DWD 272.12(1)(a)2. Workday is defined as the “period between ‘the time on any particular workday at which such employee commences their principal activity or activities’ and ‘the time on any particular workday at which they cease such principal activity or activities.‘”¹⁰

¶ 43. The regulаtion gives three examples of “what is meant by an integral part of a principal activity” justifying compensation for an employee. The third example relates to a chemical plant worker who dons and doffs clothing and equipment. This example seems closest to the facts of the instant case, and is therefore most helpful in deciding the instant case. Here are the three examples in the regulations:

a. In connection with the operation of a lathe, an employee will frequently, at the commencement of their workday, oil, grease, or clean their machine, or install a new cutting tool. Such activities are an integral part of the principal activity, and are included within such term.

b. In the case of a garment worker in a textile mill, who is required to report 30 minutes before other employees report to commence their principal activities, and who during such 30 minutes distributes clothing or parts of clothing at the workbenches of other employees and gets machines in readiness for operation by other employees, such activities are among the principal activities of such employee. Such preparatory activities are compensable under this chapter.

c. Among the activities included as an integral part of the principal activity are those closely related activities which are indispensable to its performance. If an employee in a chemical plant, for example, cannot

perform their 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 principal activity. On the other hand, if changing clothes is merely a convenience to the employee and not directly related to their principal activities, it would be considered as a “preliminary” or “postliminary” activity rather than a principal part of the activity. However, activities such as checking in and out and waiting in line to do so would not ordinarily be regarded as integral parts of the principal activity or activities.¹³

¶ 52. In both the chemical plant example and Tyson Foods, safety laws, rules of the employer, and the nature of the work all require the employees to change clothes to do their respective jobs in the chemical plant and at the Tyson Foods processing plant.²⁰ In the Tyson Foods case, there was no serious dispute that Tyson Foods required employees to don most if not all items to keep food from being contaminated, to operate more efficiently, and to limit Tyson Foods’ liability for and costs associated with employees’ injuries.²¹

. .

¶ 53. Although Tyson Foods gave short shrift to the undisputed fact that its employees were required to don most of the clothing and equipment to protect

the meat-consuming public from unappealing or even health-threatening food, the court of appeals did not. Certain of these items were worn at least in part to prevent contaminatiоn of food.²² To the court of appeals, “needing to avoid food contamination plainly adds to the indispensability of the donning and doffing.”²³

. .

¶ 54. The court of appeals concluded that donning and doffing clothes and equipment in the Tyson Foods case was indispensable for the safety of the employees and the safety of the food they help produce.²⁴ Thus, the time for donning and doffing was compensable.

¶ 55. The Tyson Foods case presents essentially the same fact situation as presented in the instant case.

¶ 56. Both Tyson Foods and Hormel operate food processing plants in Wisconsin subject to the same Wisconsin laws. The clothing and equipment requirements for employees of each company are essentially the same. Likewise, the clothing and equipment requirements for employees of each company serve essentially the same purposes: the safety of the employees and the safety of the food they help produce.

¶ 57. The testimony with regard to the purposes of Hormel‘s Work Rules is similar to the undisputed facts in Tyson Foods.

¶ 58. The Corporate Manager of Regulatory Compliance at Hormel testified that because Hormel‘s process is regulated both by the Food and Drug Admin-

In addition, I would affirm the circuit court‘s determination that the 5.7 minutes per day for which compensation is due is not “de minimis” under the facts of this case. As the lead opinion notes, the total annual compensation for this activity for each employee is over $500, which is not a “trifle.”

I write separately because I respectfully disagree with the lead opinion‘s analysis of the compensability of the 30-minute meal period, and I believe the opinion fails to properly address the waiver of the meal period claim in the circuit court.

I. BACKGROUND

The facts are as set forth in the lead opinion. I repeat here only those necessary to my partial dissent. Hormel‘s Beloit plant operates under strict food safety and sanitation regulations. To comply with these regulations, Hormel requires employees to wear specific sanitary clothing, which I will refer to as “whites,” as well as protective gear (e.g., hair nets, beard nets, hard hats, earplugs). Employees must don this gear before starting their work and doff it before leaving the facility. When employees choose to leave the facility during their 30-minute unpaid lunch break, they are required to doff this gear before leaving the plant and don it again upon their return.

The Union argued that the time spent doffing and donning gear during the lunch break essentially shortened the 30-minute meal period, thereby violating the requirement that employees be completely relieved of duty for bona fide meal periods. The circuit court agreed that the required doffing and donning denied employees a bona fide 30-minute meal period. However, the circuit court refused to award damages for the vast majority of employees who chose to remain on the premises during their lunch breaks, finding that the Union‘s “chilling effect” argument—that the rule discouraged employees from leaving—was not supported by credible evidence. The circuit court did award $15,000 in damages for the approximately 1% of employees who actually doffed and donned their gear to leave the premises for their lunch breaks.

II. DISCUSSION

A. Compensation for Doffing and Donning During Lunch

I respectfully dissent from the lead opinion‘s implicit approval of the circuit court‘s determination that the 30-minute meal period requirement was violated by the facility‘s policy. I conclude that Hormel is not required to compensate its employees for doffing and donning when they choose to leave the workplace for lunch. Leaving during the lunch break is a personal choice; it serves the employees’ interests, not the interests of Hormel. It is not “an integral part of a principal activity” of the employer within the meaning of Wis. Admin. Code § DWD 272.12(2)(e)1. (2009).

The requirement that employees doff their protective gear before leaving the plant is a health and safety requirement imposed by federal and state regulators to prevent food contamination. It is a necessary component of the work. However, once the workday is suspended for a meal period, the employer‘s interest in the employees’ activities ceases. If an employee decides to leave the premises during that time, they are subject to the same health and safety rules as any other person entering or leaving the plant. The fact that the employee chooses to leave during their meal break does not transform the time spent doing so into a compensable activity for the employer.

Furthermore, the lead opinion‘s analysis of the meal period issue is confused because it conflates the “principal activity” analysis of the start and end of the workday with the separate, distinct rules governing meal periods. As I have explained, the doffing and donning at the beginning and end of the workday is integral to the principal activity of producing sanitary food. However, once the employee is on a 30-minute lunch break, they are not performing a principal activity for the employer. Therefore, the time spent doffing and donning gear to accommodate a personal choice to leave the plant is not compensable.

B. Cabining Compensation to 5.7 Minutes

I further dissent because I would clarify that the compensation for which Hormel is liable is strictly limited to the 5.7 minutes per day stipulated by the parties. The lead opinion‘s decision to affirm the $15,000 damage award for the meal period issue creates an unnecessary ambiguity. The Union‘s counsel admitted during oral argument that the Union was “not asking for pay for the other 99%” of employees who remained on the premises for lunch. By refusing to explicitly reject the circuit court‘s ruling that the meal period policy was unlawful, while at the same time accepting the $15,000 stipulation, the lead opinion leaves open the possibility for future litigation regarding the remaining 99% of employees. I would hold that the issue of compensation for the meal period is resolved solely by the $15,000 stipulation, and that the circuit court‘s broader declaration of liability regarding the meal period should be vacated.

The record shows that keeping accurate payroll records for varying, individualized times spent doffing and donning would be an administrative nightmare for the company. The parties recognized this and stipulated to an average of 5.7 minutes per day for the start and end of the workday. This is the only rational basis for compensation in this case. If the court were to allow the meal period claim to proceed on a case-by-case basis, it would violate the “de minimis” principle and make the administrative burden on the employer unworkable. I would cabin the compensation requirement to the 5.7 minutes stipulated for the start and end of the workday, and I would explicitly hold that no further compensation for doffing and donning during the meal period is required.

For the foregoing reasons, I respectfully concur in part and dissent in part from the lead opinion.

In Integrity Staffing, the Court addressed the issue of “whether the employees’ time spent waiting to undergo and undergoing [a] security screening [was] compensable under the [Fair Labor Standards Act].” 135 S. Ct. at 515. The Court concluded that the “roughly 25 minutes” employees spent each day was not compensable work time. Id.

¶ 157. In reaching that conclusion, the Court reiterated that it “has consistently interpreted ‘the term “principal activity or activities” [to] embrac[e] all activities which are an integral and indispensable part of the principal activities.‘” Id. at 517 (emphasis added) (quoting IBP, Inc. v. Alvarez, 546 U.S. 21, 29-30 (2005)). Moreover, the Court clarified that “an activity is . . . integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic еlement of those activities and one with which the employee cannot dispense if he is to perform his principal activities.” Id. (emphasis added). Finally, the court unequivocally rejected other courts’ reliance on a required-benefit analysis: “The [Ninth Circuit] erred by focusing on whether the employer required a particular activity. The integral and indispensable test is tied to the productive work that the employee is employed to perform.” Id. at 519 (emphasis omitted). Additionally, the Court noted, “A test that turns on whether the activity is for the benefit of the employer is similarly overbroad.”¹² Id. The Court rejected the

required-benefit approach because [i]f the test could be satisfied merely by the fact that an employer required an activity, it would sweep into ‘principal activities’ the type of preliminary and postliminary activities that Congress worried would “bring about the financial ruin of many employers,” would result in “windfall payments” to employees, and attempted to remedy when it enacted the Portal-to-Portal Act.¹³ Id. at 517, 519 (internal quotation marks omitted) (quoting 29 U.S.C. §§ 251(a)-(b)).

¶ 158. The “integral and indispensable” test is no cake walk for the party who seeks to establish its requisite elements; it imposes a tough standard. For example, in Steiner v. Mitchell, 350 U.S. 247 (1956), the Court addressed whether workers in a battery plant must be paid as part of their “principal” activities for the time incident to changing clothes at the beginning of the shift and showering at the end, where they must make extensive use of dangerously caustic and toxic materials, and are

compelled by circumstances, including vital consideration of health and hygiene, to change clothes and to shower in facilities in which the state law required their employer to provide, or whether these activities are “preliminary” or “postliminary” ....

350 U.S. at 248 (emphasis added). In answering that question, the Court looked to the particular circumstances of the battery plant, which included the fact that employees “customarily work with or near the various chemicals in the plant[, including] lead metal, lead oxide, lead sulphate, lead peroxide, and sulphuric acid.” Id. at 249. There, the “very great” risks associated with the plant‘s conditions mandated “the removal of clothing and showering at the end of the work period.” Id. at 250. In fact, the practice of clothing removal and showering [had] become [such] a recognized part of industrial hygiene programs in the industry [that] the state law of Tennessee [required] facilities for th[at] purpose.” Id.

¶ 159. Under those circumstances, the trial court found, and the Court agreed, that the employees’ activities (changing clothes and showering) “[were] made necessary by the nature of the work performed; . . . and that they [were] so closely related to other duties performed by (petitioners‘) employees as to be an integral part thereof, and [were], therefore, included among the principal activities of said employees.” Id. at 252 (emphasis added) (internal quotation marks omitted). In short, changing clothes and showering was an “integral and indispensable” part of the production of batteries because without it, employees would be exposed to chemicals and potentiаlly poisoned. Id. at 249. To emphasize just how integral the changing and showering was under those particular circumstances, the Court concluded by saying, “[I]t

would be difficult to conjure up an instance where changing clothes and showering are more clearly an integral and indispensable part of the principal activity of the employment than in the case of these employees.” Id. at 256.

¶ 160. Mitchell v. King Packing Co., 350 U.S. 260 (1956), serves as another example of just how tough the “integral and indispensable” test is. In Mitchell, the Court considered “whether the knife-sharpening activities of the employees of respondent King Packing Co.” were an “integral and indispensable” part of the principal activity of meatpacking. 350 U.S. at 261. Meatpacking includes the “slaughtering, butchering, dressing, and distributing” of meat. Id.

¶ 161. There, the Court noted that “[v]arious knives and electric saws [were] used on the butchering operation” and that “all of the knives as well as the saws must be ‘razor sharp’ for the proper performance of the work.” Id. at 262 (emphasis added). The knives needed to be “razor sharp” because “a dull knife would slow down production which is conducted on an assembly line basis, affect the appearance of the meat as well as the quality of the hides, cause waste and make for accidents.” Id. The Court added, “[for] a knife to be of any practical ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍value in a knife job[, it] has to be . . . sharp.” Id. (emphasis added). Consequently, the Court held that the knife-sharpening activities were “an integral part of and indispensable to the various butchering activities for which [the employees] were рrincipally employed.” It did so because the knives needed to be “razor sharp” to perform the principal activity of slaughtering, butchering, dressing, and distributing the meat. Id. at 261, 262.

C. THE OUTCOME OF THE LEAD OPINION AND THE CONCURRING/DISSENTING OPINION CANNOT SURVIVE APPLICATION OF THE “INTEGRAL AND INDISPENSABLE” TEST.

¶ 162. Turning to the employees at the Beloit cannery, I conclude that the “donning and doffing” of the “whites” is not “integral and indispensable” to performance of a principal activity; therefore, it is not compensable. In this case, the “donning and doffing” of the “whites” by Hormel‘s employees is not an “intrinsic element” of canning food; moreover, an employee could easily dispense with the “donning and doffing” of the “whites” and still complete his or her principal activity of safely canning clean food.

¶ 163. As a result, the lead opinion‘s and the concurring/dissenting opinion‘s conclusion that the “donning and doffing” of the “whites” is “integral and indispensable” to a principal activity is incorrect. It is incorrect for two main reasons: (1) the lead opinion says that the applicable federal food, health, and safety regulations require Hormel to have its employees “don and doff” the “whites“, but the regulations do not contain such a requirement; and (2) the lead opinion relies on and affirms the circuit court‘s analysis, but the circuit court applied the wrong test.¹⁴ I will

discuss these two reasons in detail, and then I will provide two examples of when “donning and doffing” would be compensable.

1. The FDA and USDA Regulations Do Not Support The Lead Opinion‘s Conclusion.

¶ 164. To begin, the “donning and doffing” of the “whites” is not required by the applicable federal food, health, and safety regulations. There was abundant testimony regarding this point at trial:

Q. Are the whites necessary to avoid contamination at the Beloit facility?

A. No, they‘re not.

Q. Can you explain to me why that is?

A. Again, back to the regulation, there‘s various means to an end. And in that type of environment, in the food safety realm, we kind of categorize our plants into, you know, maybe high-risk operations. In our meat and poultry establishments that produce ready, or what we determine to be ready-to-eat exposed meat products, those are determined to be high-risk operations. Canning operations such as the Beloit facility are deemed lower risk due to that 12-D type cook process, the canning process in general.

Q. Could Hormel allow employees to wear street clothes at the Beloit facility and still comply with the FDA regulations?

A. Yes, they could.

Q. And could Hormel allow employees to bring whites home with them and bring them back to the facility and still comply with the FDA regulations?

A. Yes, they could. The clothes just need to be clean.

Q. So long as the clothing is clean?

A. That‘s correct.

Q. Do the FDA regulations require employees at the Beloit facility to keep their shoes within the facility?

A. No, they do not.

Q. What, if anything, do the regulations require in terms of the shoes people wear at the Beloit facility?

A. Again, it‘s just clean and what we need to prevent adulteration of the product.

Q. Are captive, or as you‘ve termed it, dedicated shoe, is that necessary to avoid contamination at the Beloit facility?

A. No, it‘s not.

Q. Do the FDA regulations require employees at the Beloit facility to wear the hardhats that you see on Holly Hormel?

A. No, the FDA regulations do not.

Q. What, if anything, do the FDA regulations require in terms of hardhats?

A. In terms of hardhats, nothing. As far as hair covering, they leave it to our discretion. The hair should be secured, a manner secured to prevent the potential for product adulteration.

Q. Okay. Do the FDA regulations require employees at the Beloit facility to wear safety glasses?

A. No.

Q. Do the FDA regulations require employees at the Beloit facility to wash their hands?

A. Again, the regulations are not very specific. It‘s somewhat of a means to an end, and it does describe where necessary they should be washing their hands. So if they‘re in direct product contact, they should be washing their hands per the FDA regulations.

(Emphasis added.) Similarly, the USDA regulations do not require “donning and doffing“:

Q. Do the USDA regulations require employees at the Beloit facility to wear whites?

A. No, they do not.

Q. What, if anything, do the USDA regulations require in terms of clothing at the Beloit facility?

A. Again, it‘s very open-ended in terms of, you know, there‘s various means to an end. We just have to prevent adulteration and the creation of insanitary conditions. So essentially clean clothes.

Q. Do the USDA regulations specify who has to own or launder the clothing worn at the Beloit facility?

A. They do not.

Q. Do the regulations specify where those items are donned and doffed and stored?

A. No.

Q. Does wearing the whites at the Beloit facility comply with the USDA regulations?

A. Yes, it does.

Q. Are whites necessary to prevent the adulteration of product or the creation of insanitary conditions at the Beloit facility?

A. No, they‘re not.

(Emphasis added.) After hearing all the testimony regarding the federal regulations, the circuit court even concluded that the federal regulations do not require employees to wear the “whites,” do not specify where the “whites” have to be “donned,” “doffed,” or stored, and do not require captive shoes. Indeed, the circuit court concluded that “Hormel employees could wear street clothes at the Beloit facility and still comply with the USDA and FDA regulations.” (Emphasis added.) In sum, compliance with the federal regulations under these circumstances is not—and cannot be—what makes the “donning and doffing” of the “whites” “integral and indispensable” to the employees’ principal activity of canning food. The lead opinion nonetheless contorts these federal regulations into just such a conclusion.

2. The Lead Opinion Conflates The Required-Benefit Test With The “Integral and Indispensable” Test.

¶ 165. The lead opinion‘s reliance on the circuit court‘s “comprehensive decision holding in favor of the Union” is mistaken because the circuit court incorrectly applied the “integral and indispensable” test by repeatedly focusing on whether the “donning and doffing” was required by and benefitted Hormel. Lead op.,

¶ 5. In other words, the lead opinion conflates the required-benefit test with the “integral and indispensable” test.

¶ 166. After discussing whether the “donning and doffing” of the “whites” was required by and benefitted the employer, the circuit court appeared to transition to analyzing and applying the “integral and indispensable” test. In fact, the heading of this section in the circuit court‘s opinion and order reads, “ARE THE ACTIVITIES CLOSELY RELATED TO AND INDISPENSABLE TO PERFORMANCE OF A PRINCIPAL ACTIVITY?” Moreover, the circuit court acknowledged that “[e]ach of the class members agreed that there was nothing essential about the clothes Hormel required them to wear in ordеr to get their job done. Each of them agreed that they could probably perform each of the movements required by their job even if wearing street clothes.” The circuit court went on to quote plant manager Scott Ramlo:

A. The clothes that they put on are there for their benefit and they‘re a good manufacturing practice and we require it, that‘s not disputed. But it, it doesn‘t have anything to do with the production of the product, I guess, for lack of— maybe I‘m oversimplifying it, but its not required, it — I‘m sorry, it‘s not essential as they make the product, it adds nothing to it. Now there are certain food manufacturing processes that, you know, perfectly clean clothes and, and like a ready-to-eat atmosphere, say something like that, we don‘t have any of those in the Beloit plant that it might add some value to it. But I can go there today and produce the products and do everything that everybody had on that screen other than the sanitation job, I can make that product the same quality. It‘s no different. And the key to the whole process in the Beloit plant being a cannery is that the product is pressure cooked and it‘s

shelf-stable. So any microorganisms, that type of thing that might be inferred by having perfectly clean clothing each day really is negated by the thermal process. . . .

(Emphasis added.) Rather than applying the “integral and indispensable” test, however, the circuit court‘s analysis transformed into an analysis of the required-benefit test: “[t]he most important part of [Scott Ramlo‘s] answer was at the start when he admitted that wearing the whites and gear was required by Hormel.” (Emphasis added.)

¶ 167. The circuit court‘s emphasis (“the most important part“) on the fact that “donning and doffing” the “whites” was required by the employer shows that the circuit court mixed a required-benefit analysis into what was supposed to be an “integral and indispensable” analysis. In fact, the circuit court‘s analysis is littered with references to the fact that “donning and doffing” was required by and benefitted Hormel:

Ms. Collins agreed that she could physically perform the tasks she is required to perform at work in clothes she wore from home but Ms. Collins continually, and correctly, pointed out that she is required to wear those clothes and equipment in order to get into the canning part of the plant pursuant to Hormel‘s rules.

The overwhelming evidence is that Hormel requires the class member to don and doff those materials to operate the Beloit facility in compliance with the federal regulations of USDA, FDA, and OSHA. There are also efficiencies already noted, an avoidance of recalls, and customer satisfaction benefits. All of these benefits are in place for Hormel because it requires the Class members to don and doff the clothing and equipment on the premises.

I further find that the donning and doffing of the whites and related gear is indispensable to the performance of the class members’ principal activities. This is so because Hormel has made it so. The only credible evidence is that Class members are required to wear these materials . . .

These acts are obligatory, essential, and absolutely necessаry because Hormel controls the process and has required these acts.

The focus is not on what the United States government may require but, instead, what Hormel requires of its own employees.

These activities are controlled by the employer for the employer‘s benefit and are integral to the Class members’ work.

(Emphasis added.) These are just a handful of times the circuit court looked at what Hormel required and whether Hormel benefited rather than looking to whether the “donning and doffing” of the “whites” was “integral and indispensable” to the principal activity of canning food.¹⁵ The circuit court did not have the benefit of the Supreme Court of the United State‘s decision in Integrity Staffing as the circuit court‘s decision was issued prior to Integrity Staffing. However, this court did have such guidance. The lead opinion‘s choice to rely on the circuit court‘s “comprehensive decision holding in favor of the Union” rather than the Supreme Court‘s instruction in Integrity Staffing is curious.

D. ADDITIONALLY, THE TIME SPENT “DONNING AND DOFFING” THE “WHITES” DURING MEAL PERIODS IS NOT COMPENSABLE WORK TIME.

¶ 168. Related to the question of whether “donning and doffing” of the “whites” at the beginning and end of each work day is compensable, is the question of whether “donning and doffing” during the employees’ 30-minute meal period is compensable. I have already concluded that the “donning and doffing” of the “whites” is not compensable because it fails the “integral and indispensable” test. However, I briefly comment on the lead opinion‘s and the concurring/dissenting opinion‘s analyses of this issue because I believe that neither can square their determinations that the “donning and doffing” of the “whites” at the beginning and end of the workday is compensable with their determinations that the exact “same donning аnd doffing” is not compensable when done over the lunch hour.

¶ 169. Most Hormel employees have a 30-minute unpaid lunch break. An employee may choose to go off his or her work premises to eat a meal. If an employee leaves, he or she is required to change out of his or her “whites” and then change back into the “whites” when he or she returns. Regardless of whether the employee leaves (and accordingly “dons and doffs“) or stays on site, the employee is entitled only to 30 minutes.

¶ 170. Hormel‘s employees argue that they have been denied the “right under Wisconsin law to have a 30-minute lunch period free from duty in which the employee is free to leave the premises.” The test for whether meal time “donning and doffing” is compensable is simple and familiar: meal time “donning and

doffing” is compensable if it is “integral and indispensable” to an employee‘s principal activity.¹⁶

¶ 171. The lead opinion and the concurring/dissenting opinion believe that the “donning and

doffing” of the “whites” is “integral and indispensable” to canning food and, therefore, compensable. Except, that is, when the “donning and doffing” occurs during the lunch hour instead of at the beginning and end of the work day. But the employees’ principal activity has not changed; it is still canning food. And what is required to be “donned and doffed” has not changed; it is still the “whites.” The only change is the time at which the employee “dons and doffs.”

¶ 172. To say that “donning and doffing” of the “whites” is “integral and indispensable” when an employee arrives and leaves at the end of the day but is not “integral and indispensable” when an employee leaves and arrives at lunch is unsupported by the law. If the lead opinion and the concurring/dissenting opinion conclude (as they do) that the “donning and doffing” of the “whites” is so “integral and indispensable” to canning food at the start of the shift at the beginning of the day that it must be compensable, then they must also conclude that the “donning and doffing” of the “whites” is “integral and indispensable” to canning food at the start of the shift after the lunch period. The lead opinion and the concurring/dissenting opinion somehow do not. In doing so, the lead opinion and the concurring/dissenting opinion admit that the “donning and doffing” of the “whites” is not truly “integral and indispensable” to the employees’ principal activity of canning food.

E. “DONNING AND DOFFING” IS SOMETIMES COMPENSABLE.

¶ 173. That the “donning and doffing” of the “whites” is not compensable under ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍our specific factual circumstances becomes abundantly clear when com-

pared to “donning and doffing” that is compensable under other circumstances.

¶ 174. For instance, some of Hormel‘s employees are part of a sanitation crew; these sanitation crew members “play a real critical part in cleaning the entire plant up top to bottom every night. . . .” Employees who work in sanitation wear different and additional clothing and equipment:

They will wear—the eyewear is more of a goggles and, in addition to a face shield. They also wear—the footwear would be different. They‘re standing in water the entire time. So tennis shoes, something like that, wouldn‘t be appropriate. And then they have—we call it a rain suit, but it‘s just a big yellow pants with suspenders аnd a coat that‘s yellow, too. So it protects them. And then they also, I think all of them wear arm guards. So you‘re sealed against the chemicals that you work with. Pretty much every job in our wet area, you‘re dealing with chemicals every night.

Hormel pays its sanitation workers to “don and doff” this additional clothing and equipment because “[the sanitation workers] really couldn‘t do their job without [it]. I mean safety and commonsense, everything says that they wouldn‘t be able to safely work out there with all those chemicals without this equipment.” (Emphasis added.) Simply put, the sanitation crew‘s principal activity is sanitizing the plant, and sanitizing the plant necessitates contact with “very caustic or acidic” chemicals; therefore, the sanitation crew must wear protective gear in order to sanitize the plant with chemicals.¹⁷

¶ 175. Here is a second example. In addition to running a cannery, Hormel runs other types of food-

related operations. In Algona, Iowa, Hormel runs a dry sausage operation, which primarily makes pepperonis.¹⁸ At trial, Francisco Velaquez, a resource and safety manager at Hormel, testified that pepperoni is a ready-to-eat meat product that must be produced in a ready-to-eat facility. For comparison, plants that produce ready-to-eat meat products are considered “high-risk operations” whereas canneries are considered “lower risk” because food product at a cannery goes through the 12-D cook or acidification processes. Because pepperonis are a high-risk, ready-to-eat meat product, employees at this type of facility must “don and doff” additional items on top of their “whites” to prevent different types of contamination (contamination that is not annihilated with a 12-D cook or acidification process).¹⁹

¶ 176. For instance, a high-risk, ready-to-eat meat facility is especially concerned with Listeria’ or Salmonella, which is often tracked into a plant by street shoes. To combat those risks, “[Hormel] ha[s] [its employees] change into these rubber boots. Then [the employees] have to go through something called a boot scrubber, and there [Hormel] appl[ies] quaternary ammonium” to reduce contamination. Additionally, employees “typically have plastic aprons that they put over their whites. . . . And then they have these things called sleeve guards that are plastic that go up to their elbows, and then they have rubber gloves that they wear that they tuck under their sleeve guards.”

¶ 177. Employees at these high-risk, ready-to-eat meat facilities are paid for the time they spend “donning and doffing” their additional gear; that is, they are paid for the time it takes to put on, wash, and take off their boots as well as the time it takes to put on and take off their aprons, sleeve guards, and rubber gloves. The “donning and doffing” of this extra gear is compensable because it is “integral and indispensable” to producing high-risk, ready-to-eat meat products.

¶ 178. The above two examples help to illustrate exactly what the “integral and indispensable” test calls for. Namely, for the employer-required activity to be compensable, it must be an “intrinsic element” of the activity performed and “one with which the employee cannot dispense if he is to perform those activities.” Integrity Staffing, 135 S. Ct. at 517. A sanitation crew member cannot dispense with his or her extra clothing and equipment due to the “very caustic or acidic” chemicals he or she is exposed to while performing his or her principal activities of cleaning and sanitizing. A ready-to-eat meat facility employee cannot dispense with his or her extra clothing and equipment due to the

high-risk nature of certain types of contamination at a ready-to-eat meat facility. But a cannery employee at a “lower risk” facility can dispense with wearing “whites” and still safely produce clean food.

¶ 179. In sum, Hormel‘s own employees put it best when they testified, and the circuit court found that “there is nothing essential about the clothes Hormel required them to wear in order to get their job done.” (Emphasis added.) I agree with Hormel‘s employees. The “donning and doffing” of the “whites” is not “integral and indispensable” to the Beloit employees’ principal activity of canning food; therefore, the time spent “donning and doffing” the “whites” is not compensable.

III. WHAT THE LEAD OPINION DOES NOT DECIDE: THE DE MINIMIS NON CURAT LEX DOCTRINE.

¶ 180. I now turn to the second issue: whether the requirement for compensation for time spent “donning and doffing” would be obviated by the doctrine of de minimis non curat lex (“the law doesn‘t care about trifles“). Because I have concluded that the employees “donning and doffing” of the “whites” is not compensable, I need not consider whether the time spent “donning and doffing” is de minimis.

¶ 181. However, I write to point out that the lead opinion, while pretending to engage in a de minimis-like discussion, does not actually answer the question before us. Specifically, the lead opinion does not determine whether the de minimis doctrine applies in Wisconsin, does not explain what test or approach it used to reach its conclusion, and thus, does not provide any guidance for courts and parties moving forward.

We grant review of cases only when “special and important reasons are presented” and when a decision will help “develop, clarify or harmonize the law.” Wis. Stat. § 809.62(1r), (1r)(c). In choosing not to answer the question before this court, the lead opinion fails to help “develop, clarify or harmonize the law.” As a result, while this case is decided by the lead opinion for these employees at this facility, the issue of whether the de minimis doctrine applies in Wisconsin and how a de minimis determination would be conducted lives on.²⁰

¶ 182. The de minimis doctrine simply asks the following: should all “integral and indispensable” activities, including those that last a single second or a handful of seconds or minutes be recorded by and paid for by an employer? See Anderson v. Mt. Clements Pottery Co., 328 U.S. 680, 692 (1946) (“Split-second absurdities are not justified by the actualities of working conditions . . .“). Or are there ever activities that take such a small, trivial amount of time that a court should not expect an employer to keep track of and compensate for this time? See JCG Industries, 745 F.3d at 842, 841 (noting that “[c]ommonsense has a place in

adjudication” and commenting that “[o]ne reason to withhold a remedy is that the harm is small but measuring it for purposes of calculating a remedy would be difficult, time-consuming, and uncertain, hence not worthwhile given that smallness“); Lindow v. United States, 738 F.2d 1057, 1062 (9th Cir. 1984) (“[C]ommon sense must be applied to the facts of each case.“). The Supreme Court of the United States answered the de minimis question by holding that “[w]hen the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded.” Anderson, 328 U.S. at 692.

¶ 183. As a result, when a federal court determines that the time spent on an activity is compensable because it is “integral and indispensable,” the court next determines whether that compensable time is rendered non-compensable by the de minimis doctrine. See id. at 693; Lindow, 738 F.2d at 1062 (“As a general rule, employees cannot recover for otherwise compensable time if it is de minimis.“). In contrast, when a federal court determines that the time spent on the activity is not “integral and indispensable,” the court‘s analysis ends and no compensation is due. See Integrity Staffing, 135 S. Ct. at 515 (concluding that the activity was not “integral and indispensable” and, therefore, not proceeding to a de minimis analysis). We have never before determined whether we should take this same approach in Wisconsin.²¹ We were called upon to make that determination in this case.

¶ 184. Because the lead opinion concludes that the employees “donning and doffing” of the “whites” is compensable, it could have engaged in a full discussion of whether the de minimis doctrine applies in Wisconsin.²² But it did not. To quote the lead opinion,

Assuming, without deciding, that the de minimis doctrine is applicable to claims under Wis. Admin. Code § 272.12, we conclude that in the instant case, the de minimis doctrine does not bar compensation for the time spent donning and doffing the rеquired clothing and equipment because the time spent donning and doffing is not a “trifle.”

Lead op., ¶ 98 (emphasis added).²³ Why assume without deciding? The question was certified by the court of it must next consider whether the time spent on that activity is so short in duration that it qualifies as de minimis, in which case the time is not compensable. Under this approach, because the lead opinion and the concurring/dissenting opinion concluded that the time spent “donning and doffing” is “integral and indispensable,” they would need to then consider whether that time is so short in duration that it qualifies as de minimis. If it qualifies as de minimis, then no compensation is due.

appeals, the parties spent roughly 17 pages of their respective briefs on the issue, and the parties addressed this issue during oral argument before this court. Perhaps the lead opinion chooses not to answer the question because it cannot reach its present outcome given what the law is.

¶ 185. The law is this. The Supreme Court of the United States first applied the de minimis doctrine in Anderson v. Mt. Clements Pottery Co., 328 U.S. 680 (1946). There, the employees alleged that their employers’ method of calculating hours did not “accurately reflect all the time actually worked and that they were thereby deprived of” proper overtime compensation. Anderson, 328 U.S. at 684. The employees wanted their walk time to and from their workstations as well as their “donning and doffing” of work clothing included in their work hours. Id. at 682-83.

¶ 186. In resolving that question, the Court noted,

When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act. It is only when the employee is required to give up a substantial measure of his time and effort that compensable working time is involved.

Id. at 692 (emphasis added). Later in the opinion, the Court reiterated, “it is appropriate to apply a de minimis doctrine so that insubstantial and insignificant periods of time spent in preliminary activities donning and doffing at the beginning and end of the workday are not de minimis, assuming that the de minimis rule may be applied to the Union‘s claims.” Concurrence/Dissent, ¶ 1125 (emphasis added).

need not be included in the statutory workweek. Id. at 693 (emphasis added). The Anderson Court‘s focus was on time, specifically whether the activity took just “a few seconds or minutes.” See also Lindow, 738 F.2d at 1062 (“An important factor in determining whether a claim is de minimis is the amount of daily time spent on the additional work.“).

¶ 187. While making sure to explain that it is not deciding whether the de minimis doctrine applies in Wisconsin, the lead opinion nevertheless discusses the doctrine and pays lip service to Anderson by quoting its use of the word “trifle.” But unsurprisingly the lead opinion chooses not to apply Anderson‘s test.²⁴ Instead,

the lead opinion cherry-picks one factor (not found in Anderson) in which to ground its conclusion.²⁵ The lead opinion states,

[i]n the instant case, employees spend approximately 24 hours per year donning and doffing. Viewed in light of the employees’ hourly rate of $22 per hour, the unpaid period in question may amount to over $500 per year for each employee and substantial sums for Hormel. We agree with the circuit court that in the instant case this time is not a “trifle.”

Lead op., ¶ 102 (emphasis added).²⁶

¶ 188. Hidden in the lead opinion‘s language is a conclusion that is at odds with the law: that 2.903 minutes is not de minimis. The lead opinion cannot

state outright that 2.903 minutes is not de minimis because it would be hard-pressed to reconcile that determination with the fact that Anderson designed the de minimis doctrine to preclude compensation when “the matter in issue concerne[d] only a few seconds or minutes of work.” Anderson, 328 U.S. at 692 (emphasis added). Moreover, it cannot state outright that 2.903 minutes is not de minimis because it would have to face the fact that “[m]ost courts have found daily periods of approximately 10 minutes de minimis even though otherwise compensable.” Lindow, 738 F.2d at 1062 (emphasis added) (holding that the 7 to 8 minutes the employees spent on a pre-shift activity in that case was de minimis and citing a litany of cases for the proposition that daily periods of 10 minutes or less are de minimis).

¶ 189. If the lead opinion were to actually answer the question of whether the de minimis doctrine is a part of Wisconsin law, then it would have to focus on—or at the very least discuss—the amount of daily time spent on “donning and doffing” (here, 2.903 minutes) and whether that time qualifies as just a few “seconds or minutes.” The lead opinion tiptoes past this quagmire by sidestepping the question entirely.²⁷

concurring/dissenting opinion, this time becomes de minimis if it is not cabined because “if Hormel were required to record for payroll purposes the varying amounts of the time that each individual employee expends to don and doff at the beginning and end of each workday, it would appear to be almost an administrative impossibility to do so accurately.” Id., ¶ 132; see also id., ¶¶ 109, 135, 138, 140.

The problem with the concurring/dissenting opinion‘s сonclusion that it “would appear to be” an administrative impossibility to accurately record the time is that the circuit court made the exact opposite finding of fact in its opinion and order. The circuit court spent nearly two and a half pages in its order and opinion specifically addressing whether it would be administratively difficult for Hormel to accurately record “donning and doffing” time. Indeed, the section of the circuit court‘s opinion and order is titled “Practical Administrative Difficulties.” There, the court stated,

Despite carrying the burden of proof on the de minimis issue, I find that Hormel has not provided credible evidence of administrative difficulties which may be encountered if it is required to record the additional donning and doffing time. As a result, factor two [of the Lindow test] also falls in favor of the Class.

(Emphasis added.) Later, the circuit court again emphasized that “the vague and unsubstantiated opinions of Hormel employees about the administrative difficulties of reimbursing the Class members for donning and doffing are belied by the daily activities at the Beloit Hormel plant. ... Hormel‘s processes show that it is able to monitor [employees] adequately.” (Emphasis added.) Thus, the concurring/dissenting opinion‘s conclusion that it “would appear to be” an administrative impossibility to record the time spent “donning and doffing” is directly contrary to the circuit court‘s explicit finding of fact on that point. The concurring/dissenting opinion “appears” to ignore the circuit court‘s opposite finding of fact, as it fails to acknowledge the circuit court‘s fаctual finding and fails to provide any discussion of whether the circuit court‘s finding would be clearly erroneous.

Consequently, the question is left unanswered ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and Wisconsinites are left wondering.

¶ 190. In sum, the lead opinion could have resolved the issue of whether the de minimis doctrine applies in Wisconsin, and it could have provided a workable test or approach for how to conduct a de minimis analysis. It chose not to. When we accept a case, we do so to help “develop, clarify, or harmonize the law.” As such, the lead opinion owed the people of Wisconsin and the parties a full and thorough discussion on whether the de minimis doctrine applies in Wisconsin as well as a discussion on the proper method or approach for conducting a de minimis analysis. Because the lead opinion elects to leave today‘s question unanswered, it short-changes the people of Wisconsin.

IV. CONCLUSION

¶ 191. I cannot join the lead opinion because I believe it reaches the wrong conclusion as to whether the “donning and doffing” of the “whites” is “integral and indispensable” and reaches no determination as to whether the de minimis doctrine is a part of Wisconsin law or how a de minimis analysis is to be conducted in future cases.

¶ 192. For the reasons stated, I respectfully dissent.

¶ 193. I am authorized to state that Justice ANNETTE KINGSLAND ZIEGLER joins this dissent.

Image in original document— tables of don/doff times

Image in original document— table of walking distances

Image in original document— table of employees per area

Notes

Dennis A. Warne, Charles R. Seeley, and Pamela Collins join as plaintiffs. We refer only to the Union as the plaintiff for simplicity.

All subsequent references to the Wisconsin statutes are to the 2013-14 version unless otherwise indicated.

All subsequent references to the Wisconsin Administrativе Code are to the February 2009 register date unless otherwise noted.

The court granted review in the Tyson Foods case. See , review granted, . The review was dismissed prior to argument or a decision by this court, however, when the parties settled the litigation.

The shoes must be kept at the facility and are called “captive shoes.”

This stipulation includes not just the time spent donning and doffing the required clothing and equipment, but also time spent washing hands and walking to and from workstations. Nonetheless, under Wis. Admin. Code § DWD 272.12(1)(a)2., the “workday” is defined as “the period between ‘the time on any particular workday at which such employee commences their principal activity or activities’ and ‘the time on any particular workday at which they cease such principal activity or activities.‘” Because we hold that donning and doffing the required clothing and equipment at the beginning and end of the day is integral and indispensable to the employees’ principal work activity of food preparation, the donning and doffing is itself a principal work activity. See (“[W]e hold that any activity that is ‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal activity.‘“). As a result, the time spent walking to or from workstations or washing hands occurs after the employees’ “workday” begins and is thus compensable. See (“Moreover, during a continuous workday, 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 the FLSA.“).

See Laurie E. Leader, Wages and Hours: Law & Practice § 6.03[7], at 6-30 (2015).

In the circuit court, the parties also disagreed about the burden of proof. The Union argued that it would have the burden of proof to demonstrate that the acts at issue are

Wisconsin Admin. Code § DWD 272.12, titled “Interpretation of hours worked,” states in (1)(a)1.:

Wisconsin Admin. Code § DWD 272.12(1)(a)2. states:

¶ 41. This regulation leads us to the meaning of the phrase “principal activity or activities” of the employee.

¶ 42. “Principal activities” is defined in Wis. Admin. Code § DWD 272.12(2)(e) to include all activities that are “an integral part of a principal activity.” (Emphasis added.) “Among the activities included as an integral part of the principal activity are those closely related activities which are indispensable to its

performance.”¹¹ In other words, an integral part of a principal activity includes activities that are closely related to the principal activity and indispensable to its performance.¹²

(emphasis added).

See Wis. Admin. Code § DWD 272.12(2)(e)c.

See . I agree with the lead opinion‘s and the concurring/dissenting opinion‘s conclusion that Tyson Foods need not be overruled because although the court of appeals applied a required-benefit test, it went on to discuss whether the “donning and doffing” under the circumstances present in that case were “integral and indispensable” to a principal activity.

This Wisconsin regulation is substantially similar to federal regulations addressing the phrase “principal activity or activities.” Compare Wis. Admin. Code § DWD 272.12(2)(e) with 29 C.F.R. § 785.24 and 29 C.F.R. § 790.8(b)-(c). Specifically, the federal regulations provide the exact same three examples that § DWD 272.12(2)(e) provides to clarify when an activity is an “integral part of a principal activity” for which employees must receive compensation.

¶ 44. To determine whether the Hormel-required donning and doffing are merely incidental preparatory and concluding activities or are integral and indispensable to the employees’ primary activities, we examine the third example, which we shall refer to as “the chemical plant example,” and its interpretation and application by the court of appeals in Weissman v. Tyson Prepared Foods, Inc., 2013 WI App 109, 350 Wis. 2d 380, 838 N.W.2d 502. We shall refer to this case as the Tyson Foods case.

¶ 45. The plaintiffs in Tyson Foods were employees of a meat processing plant in Jefferson County, Wisconsin, operated by Tyson Prepared Foods, Inc. Tyson Foods required its employees to put on sanitary clothing and equipment before they began their duties for each shift and to take off these items at the end of their shifts.¹⁴

¶ 46. The clothing and equipment involved in Tyson Foods are very similar to those in the instant case: hair nets; beard nets; frocks (a coat with snaps in front); vinyl gloves; vinyl sleeves; lightweight hard hats; safety glasses; ear plugs; and “captive shoes.”¹⁵

¶ 47. In Tyson Foods, the court of appeals began its analysis with Wis. Admin. Code § DWD 272.12(1)(a)1. and determined that Tyson Foods controlled the employees’ clothing and equipment and that requiring employees to put on and take off the required clothing and equipment primarily benefited the employer.¹⁶ Although the court of appeals viewed this initial inquiry as necessary, the court of appeals did not consider it dispositive.¹⁷

¶ 48. The Tyson Foods court of appeals then turned its inquiry to whether the period of contested compensation is included as a “principal activity,” as distinguished from “preparatory and concluding activities,” under Wis. Admin. Code. § DWD 272.12(2)(e).¹⁸

¶ 49. The court of appeals concluded in Tyson Foods that the donning and doffing are compensable because they are integral and indispensable to the principal work activities of the employees in manufacturing food.

¶ 50. The court of appeals in Tyson Foods relied primarily on the chemical plant example set forth in Wis. Admin. Code § DWD 272.12(2)(e)1.c. to analyze the issue. In this example, as set forth in full above, a chemical plant employee is entitled to compеnsation for time spent to don and doff protective clothing and equipment at the employer‘s premises.

¶ 51. Comparing the chemical plant employees and the Tyson Foods employees, the court of appeals determined that the chemical plant example in the regulations is analogous to the donning and doffing of the Tyson Foods clothing and equipment.¹⁹

. Congress enacted the Portal-to-Portal Act in an effort to remedy a judicial interpretation of the Fair Labor Standard Act that if permitted to stand would have “br[ought] about the financial ruin of many employers” and would have resulted in a windfall of payments to employees “for activities performed by them without any expectation of reward beyond that included in their agreed rates of pay.” (internal quotation marks omitted) (quoting 29 U.S.C. §§ 251(a)-(b)). The Portal-to-Portal Act exempted employers from liability for claims based on “activities which are preliminary to or postliminary to said principal activity or activities.” Id. (quoting 29 U.S.C. § 254(a)). These preliminary or postliminary aсtivities “occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.” Id. (quoting 29 U.S.C. § 254(a)).

. Although this dissent refers most often to the lead opinion, the concurring/dissenting opinion suffers from the same shortfalls because it agrees with the lead opinion‘s point of view: “While I do not join the lead opinion, I agree with its conclusion that donning and doffing of company-required clothing and gear at the beginning and end of the workday is ‘an integral part of a principal activity’ of Hormel Foods Corporation for which compensation is required,” concurrence/dissent, ¶ 108 (footnote omitted) (citing Lead op., ¶ 7), and “I agree with the lead opinion‘s conclusion that § DWD 272.12(2)(e)1. requires Hormel to compensate its employees for 5.7 minutes per day that have been cabined for donning and doffing clothing and equipment at the beginning and end of the workday,” id., ¶ 117 (citing Lead op., ¶ 7).

. Indeed, the circuit court seems to have concluded that the “donning and doffing” of the “whites” is indispensable because it is required. This is a conflation of the required-benefit analysis and the “integral and indispensable” analysis.

The court of appeals concluded that the donning and doffing activities were required and controlled by Tyson Foods and primarily benefited the employer, satisfying the initial inquiry. . In an attempt to reach its current outcome, the concurring/dissenting opinion distorts the analysis for lunchtime “donning and doffing.” Although the concurring/dissenting opinion believes the “donning and doffing” of the whites is “integral and indispensable” to “sanitary food production” at the beginning and end of the day, it concludes that the same “donning and doffing” of the same “whites” is no longer “integral and indispensable” to “sanitary food production” when done over the lunch hour. Concurrence/Dissent, ¶ 121. The concurring/dissenting opinion states,

First, no interest of Hormel is served by employees leaving its facility during lunch break. Stated otherwise, leaving Hormel‘s facility at lunch does not aid in sanitary food production, which is a principal activity of Hormel. Second, the choice to leave Hormel‘s facility at lunch is totally each individual employee‘s choice, not Hormel‘s.

Id., ¶ 122 (emphasis added). There are two problems with this conclusion.

First, the concurring/dissenting opinion focuses on what Hormel requires and whether Hormel benefits. As laid out in full earlier, conflating the required-benefit test with the “integral and indispensable” test goes against the law as clarified by the Supreme Court of the United States in Integrity Staffing.

Second, the concurring/dissenting opinion applies the wrong test by focusing on the employees’ choice to leave. The test is whether the “donning and doffing” of the “whites” when entering and exiting the Beloit cannery (whether at the beginning and end of the day or at lunch) is “integral and indispensable” to canning food. The lead opinion and concurring/dissenting opinion say it is at the beginning and end of the day. Common sense would dictate that if “donning and doffing” the “whites” is “integral and indispensable” to canning food at the beginning and end of the day, then it must also be “integral and indispensable” to canning food at the middle of the day after lunch.

. Scott A. Ramlo, plant manager at the Beloit cannery, testified that some of the chemicals the sanitation crew works with are “very caustic or acidic and will cause skin damage, irritation.” He went on to say the following:

Q. I‘m sorry? Now, what, what are the cleaning materials please?

A. It can be any number of chemicals, but it‘s a foam that comes from a central foaming station that will break the surface tension of the product on to the stainless steel. ... So the foam that he‘s using and applying there is corrosive materials that you have to be protected from. And he‘ll spray that. After he‘s done, a quick rinse of the equipment when he first got to it, then he‘ll come and put that foam over the entire, all that equipment. You can see it‘s foam because it clings.

(Emphasis added.)

. Interestingly, the employees in Tyson Foods primarily made pepperonis.

Scott Ramlo, plant manager at the Beloit facility, testified, “There are certain things that you should probably do if you‘re making bacon or pepperoni or something that somebody‘s going to eat right out of the package versus what we do, which is a thermos-processed product that‘s fully processed in a can, very different than some other products.”

As stated previously, we were called upon to determine whether the de minimis doctrine applies in Wisconsin. This was a question of first impression for this court. The concurring/dissenting opinion appears to adopt the de minimis doctrine in Wisconsin. It states, “I adopt and apply the Lindow test. . . .,” concurrence/dissent, ¶ 130, and “If the time allocated for donning and doffing were not cabined at a specified number of minutes per employee per workday, the de minimis rule would preclude compensation . . . .,” id., ¶ 109. But the concurring/dissenting opinion fails to explain why it chooses to adopt the de minimis doctrine in Wisconsin. Similar to choosing not to answer the question at all, blind adoption of the doctrine without any explanation fails to help “develop, clarify or harmonize the law.” Wis. Stat. § 809.62(1r), (1r)(c).

If we adopt this approach, then one possible way of resolving this issue would be as follows: (1) if a court concludes that an activity is not “integral and indispensable,” then the analysis ends and no compensation is owed; but (2) if a court concludes that an activity is “integral and indispensable,” then

Simply put, the lead opinion had an abundance of options in this case, but it chose none. The lead opinion could have concluded that the de minimis doctrine does not apply in Wisconsin. The lead opinion could have concluded that the de minimis doctrine applies in Wisconsin and then provided a practical framework for how to conduct a de minimis analysis. The lead opinion could have concluded that the de minimis doctrine applies and then held that the 2.903 minutes spent donning and doffing each day was too long in duration to qualify as de minimis. Rather than choose any of the above options, the lead opinion picked an outcome and reached a conclusion for these litigants on this day.

The concurring/dissenting opinion also notes that the lead opinion dodges the question of whether the de minimis doctrine applies in Wisconsin: “The lead opinion concludes that

Again unsurprisingly, the concurring/dissenting opinion also gives Anderson, the Supreme Court of the United Stаtes decision that created the de minimis doctrine, a fleeting glance. The concurring/dissenting opinion mentions Anderson a meager three times ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in its entire de minimis discussion, which spans approximately five pages. See Concurrence/Dissent, ¶¶ 126, 128, 131. Rather than rely on a Supreme Court decision, the concurring/dissenting opinion roots its analysis in a Ninth Circuit opinion, . In fact, the concurring/dissenting opinion formally “adopt[s] and applies] the Lindow test.” Concurrence/Dissent, ¶ 130. Lindow is cited by federal courts for its four-factor de minimis approach. Under Lindow, a de minimis determination looks at (1) the amount of daily time spent on the additional work, (2) the administrative difficulty in recording that additional time, (3) the aggregate amount of compensable time, and (4) the regularity of the additional work. 738 F.2d at 1062-63. Missing from the concurring/dissenting opinion‘s discussion of Lindow is a critical quote from Lindow: “Most courts have found daily periods of approximately 10 minutes de minimis even though otherwise compensable.” Id. at 1062. Lindow itself stands for the proposition that the 7 to 8 minutes employees spent on activities qualified as de minimis. Id. at 1063-64.

The lead opinion does not cite Lindow, but it arguably is where the lead opinion hand-picked the aggregate sum factor. If so, the lead opinion conveniently forgot to look at the first factor: “the amount of daily time spent on the additional work.” Lindow, 738 F.2d at 1062 (emphasis added).

The concurring/dissenting opinion also utilizes an aggregate sum factor: “In addition, although 5.7 minutes per day is a small amount of time, because it is expended every day, the aggregate amоunt of each employee‘s claim per year is $500, which is significant. It is also significant to Hormel as an aggregate amount for all food preparation employees.” Concurrence/Dissent, ¶ 136 (emphasis added). Not only is the lead opinion‘s and the concurring/dissenting opinion‘s seemingly outcome oriented choice to ground their analyses in an aggregate sum factor not supported by the law (namely, Anderson), but also their outcome leads to disparate treatment under the law. A de minimis analysis that is focused on a dollar figure will favor those employees who are paid a higher wage. Employees who make only $5 per hour and file a wage and hour claim will have their aggregate sum declared de minimis, but employees who make $22 per hour will have their aggregate sum declared not de minimis. Perhaps this is why Anderson‘s focus was on time, and whether the activity concerned just a few “minutes or seconds.”

The concurring/dissenting opinion also creeps past the time predicament but does so in a different way. The concurring/dissenting opinion concludes, If the time allocated for donning and doffing were not cabined at a specified number of minutes per employee per workday, the de minimis rule would preclude compensation because keeping accurate payroll records of the varying time that each employee spends donning and doffing would appear to be a nearly impossible administrative task for Hormel. Concurrence/Dissent, ¶ 109. In sum, because the parties stipulated to 5.7 minutes, 5.7 minutes is not de minimis. Otherwise, 5.7 minutes would be de minimis. According to the

Read the detailed case summary