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Donning and Doffing: What would Cardozo do?

Judge Richard Posner

Judge Richard Posner

Seventh U.S. Circuit Court of Appeals Judge Richard Posner is raising eyebrows with this opinion, in which he gleefully admits that he went out and bought safety equipment and timed three clerks as they put it on and took it off in chambers in order to test the reasonableness of the poultry-plant workers’ claims in a “donning and doffing” case.

The judge below had expressed no opinion on that point, and the parties on either side of the issue had motive to rig any such test, Posner noted.

“The limitations of the trial process as a method of finding certain types of fact must be recognized,” the Cardozo biographer and erstwhile bearer of the Cardozo-of-our-time mantle wrote.

Now, Posner was not looking for “evidence,” mind you. That would be wrong, as the dissenter in the case pointed out. No; Posner’s intention “was to satisfy curiosity rather than to engage in appellate fact-finding—but it is information that confirms the commonsense intuition that donning and doffing a few simple pieces of clothing and equipment do not eat up half the lunch break.”

The result? An average of 110 seconds, not the 10 to 15 minutes the poultry plant workers say it takes out of their lunch breaks. (The 4th Circuit, in a similar case out of Maryland, figured donning and doffing took a little less than seven minutes out of the workers’ lunch time.)

Now, to be fair, Posner did not try to simulate the walk to an approved changing station, nor the post-change sanitation procedures the workers included in their total.

To be really fair, though, if Posner believed the record was deficient, shouldn’t he have had a little more faith in “the trial process” and sent the case back for more fact-finding?

Barbara Grzincic is managing editor of The Daily Record in Baltimore, which, like Wisconsin Law Journal, is owned by The Dolan Co.

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