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State Supreme Court considers donning, doffing pay

State Supreme Court considers donning, doffing pay

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Decision could affect thousands of employees across Wisconsin

When should an employee be paid for the time it takes to put on and take off work clothes and other equipment before and after a shift at a Wisconsin pepperoni and salami processing plant?

The Wisconsin Supreme Court heard oral arguments April 8 in the matter of Jim Weissman, et al. v. Tyson Prepared Foods Inc., 2012 AP 2196, following the appellate court’s summary judgment reversal which found that workers at a Tyson plant in Jefferson should be paid for the time they spent “donning” and “doffing” their work clothing and other protective gear at the plant.

The Supreme Court’s decision could affect whether thousands of employees across the state should be paid for the time it can take to put on and take off work garments and gear at the workplace.

In brief

Case: Jim Weissman, et al. v. Tyson Prepared Foods Inc.

Attorneys for Weissman et al.: Douglas Phebus of Arellano & Phebus SC, Middleton; Joel Cohn, Ruthanne Deutsch and Brittani Head of Akin Gump Strauss Hauer & Feld LLP, Washington, D.C.

Attorneys for Tyson: Thomas Krukowski and Keith Kopplin of Krukowski & Costello SC, Milwaukee

Case history

Tyson operates a food processing plant in Jefferson, which mainly prepares pepperoni and salami used in pizza and sandwich products.

In 2010, six employees filed a class action suit on behalf of a proposed class of 350, claiming Tyson was breaking Wisconsin state workforce regulations by failing to pay them for the time it took to “don” and “doff” the required work garments and gear.

Counsel for Tyson responded that although the company does require its employees to wear certain clothes and other work gear, and dress at work, the nature of the clothes and other equipment worn are not “integral” to the job being done and should not be paid time.

Furthermore, Tyson described the clothes and gear worn by its employees mostly as commonplace. The safety clothing, eyeglasses, hairnets, beard nets, smocks and bump hats were not specifically designed for use at the plant, and the company claimed each one takes “seconds” to put on and take off.

Counsel for the employees claim approximately 110 hourly employees work in the plant’s raw meat department, 130 in the ready-to-eat department, and another 90 workers handle maintenance, sanitation and shipping at the Tyson facility.

The processing plant function was designed so that employees from different areas would not unnecessarily mix and possibly contaminate each other, according to the plaintiffs’ brief. Employees handling meat used different entrances and different locker rooms than other employees. Workers also wear different colored smocks and hats to further visually distinguish employees from different departments to prevent accidental contamination.

Tyson goes out of its way to comply with state and federal foodservice regulations by maintaining standards of cleanliness and sanitation. All steps that the workers take to maintain and work within these sanitation guidelines are largely for the benefit of the employer, according to the workers’ brief.

The courts weigh in

On summary judgment, Jefferson County Circuit Judge William Hue found for Tyson on all counts.

In his written opinion, Hue concluded the specific donning and doffing of work gear at Tyson was not “integral” and “indispensable” to the principal work activity under Wisconsin’s Department of Workforce Development administrative code provisions.

The Court of Appeals then reviewed the matter de novo and found that the circuit court had placed too much emphasis on trying to track and interpret language of the DWD code by federal standards.

According to the appellate court’s decision, the plain language of Wisconsin statutes 272.12, 272.12(e)1, 272.12(2)(e), and 272.12(1)(a)1, viewed collectively, support the idea that Tyson workers should be paid for their “donning” and “doffing” time. The act of putting on and taking off this specialized work gear was controlled by Tyson, said the appellate court, and considered to be “necessary” for the employees to do their jobs and safely process prepared foods.

Furthermore, the court found no reasonable dispute to the fact that employees are required to be on company premises when they are “donning” and “doffing,” according to the court’s Aug. 1, 2013 opinion, as this helps

Tyson manufacture a final product as contaminant-free as possible.

The appellate court found for the workers and reversed the circuit court’s summary judgment.

The case before the justices

In its brief to the Supreme Court, Tyson argued the appellate court, in its analysis, failed to properly factor in federal statutes and case law, and misconstrued the plain meaning of Wisconsin workforce statutes.

To begin, Tyson claimed, the appellate court ignored the plain language of the Wisconsin workforce provisions, suggesting that the appellate court’s reading of these statutes would render ineffective any real meaning of the work “integral.” Certain preparation for work can be “necessary,” according to Tyson’s brief, without being “integral” under Wisconsin workforce regulations.

Wisconsin workforce law does not require employers to pay employees from the moment they set foot on the premises of their employer. And once they are on the premises, according to Tyson’s brief, an employee needs to be paid only when he or she “commences principal activity.”

Tyson acknowledged there is a narrow exception where Wisconsin employees may be eligible for compensated time before and after a shift if their preparation time is an “integral part” of an employee’s “principal activity.”

The Wisconsin administrative code does not specifically define “integral part” for purposes of the statute. However, Tyson pointed to several examples in the Wisconsin DWD regulations where preparation time was found to be integral.

In one example, a lathe worker’s preparation would be “integral” if he regularly has to prep or oil his machine or even replace a cutting surface, and could not perform his regular work if this pre-shift preparation were not done. In another example, a garment worker who has to lay out a variety of cloth sections at different work stations and preps different machines for other employees was found to be an “integral part” of the principal activity.

Although Tyson employees have to take steps to keep a sanitary premises, their preparation of donning certain clothes, smocks, gloves and hats does not rise to the level of truly an “integral part” of the process, according to Tyson’s brief, as seen in both the lathe operator and garment worker examples provided in the state statutes.

Tyson also relied in part on Steiner v. Mitchell, 350 U.S. 247, (1956), where the U.S. Supreme Court provided some clarification between preliminary and “postliminary” work that would not be compensable, as well as preparation that is an “integral and indispensable” part of an employee’s principal activities.

In Steiner, putting on and removing protective clothes and taking showers at a battery factory was found to be “integral” to the employee’s primary work. Such preparation included donning uniquely protective clothing and other gear intended to keep a safe distance between the dangerous chemicals and the employees.

By comparison, Tyson argued, taking dried meats and adding spices and other additives, although necessary to be done safely and correctly, does not have the potentially life-threatening consequences of similar “donning” and “doffing” protective clothes in a battery acid plant.

The workers’ brief, in turn, took issue with Tyson’s “save employee lives” argument, which was extracted from its interpretation of Steiner. A final decision on worker pay to “don” and “doff” clothing should not rely upon whether the clothing is necessary to save the employee’s life, the plaintiffs argued.

A decision is expected by the end of the term.

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