Supreme Court hears union arguments for paying workers to ‘don,’ ‘doff’ uniforms

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A lawsuit in front of the Wisconsin Supreme Court will determine if employees at a Fort Atkinson food production factory should receive back pay for putting on work clothes before a shift and taking them off afterward. The United Food and Commercial Workers International Union Local 538 filed a lawsuit to collect $765,000 in unpaid wages for workers who had to don and doff uniforms at a food factory in Fort Atkins.

In 2010, employees sued the company for time they had spent between 2008 and 2013 putting on their uniforms at the beginning of the day taking them off at the end and walking to their job sites. Workers at the plant have to wear safety shoes or shoe covers, a frock that snaps on over their clothes, earplugs, a plastic bump cap, and — in some cases — a hairnet and beard net. Court documents said employees spent an average of 4.3 minutes a day putting on and taking off uniforms. All told, the argue, they are owed $3,400 each, or more than $765,000 in total.

In 2013, Jones Dairy adopted a new payroll system that paid employees by the minute and that took into account time spent donning and doffing their uniforms.

A court ruled in 2016 that the dressing and undressing time between 2008 and 2013 was compensable. Jones Dairy Farm appealed in 2017, and a judge said he’d consider arguments calling for liquidated damages. The circuit court entered a final judgement in 2018, but Jones Dairy Farm appealed it within a month.

The case is now in front of the state Supreme Court. The justices heard oral arguments Monday.

Jones Dairy is arguing the union had bargained away employees’ rights to donning and doffing payments in collective-bargaining agreements reached in the years leading up to the lawsuit.

Since 1985, the union’s collective-bargaining agreements have deemed time spent donning and doffing to not be compensable. Before that, employees had received 12 additional minutes of paid time to get ready. Bernard Bobber, the lawyer for Jones Dairy and a shareholder at Ogletree Deakins in Milwaukee, argued that the union used the time as a bargaining chip. In return for giving up compensation for donning and doffing time, it was able so secure an increase in base hourly wages.

“Of course, a collective-bargaining contract can contract away employee rights to paid time,” said Bobber.

Mike Modl, shareholder at Axley in Madison, represented the employees suing for compensation. He argued Wisconsin law doesn’t permit bargaining away an employee’s right to compensation for donning and doffing.

“Parties are not free in contract to violate the law,” said Modl.

The high court has a history of ruling in favor of back wages. In 2016, the justices ruled Hormel Foods Corp. had to pay $195,000 in back wages to workers for time spent donning and doffing required clothing. Follow @WLJReporter