FLSA Class Action Defense Cases-Spoerle v. Kraft Foods: Wisconsin Federal Court Denies Defense Summary Judgment Motion In FLSA Class Action Seeking Compensation For Donning And Doffing Protective Equipment

Feb 11, 2008 | By: Michael J. Hassen

Defense Motion for Summary Judgment Arguing that Class Action Claims Seeking Compensation under Federal Fair Labor Standards Act (FLSA) for Time Spent Donning and Doffing Safety Gear Required by Employer Denied for Failure to Establish as a Matter of Law that Class Action Claims Fell Within Exception to FLSA Compensation Requirement Wisconsin Federal Court Holds

Plaintiffs filed a class action lawsuit against their employer, Kraft Foods, alleging violations of the federal Fair Labor Standards Act (FLSA) and state law for time spent in donning and doffing safety and sanitation equipment as part of their jobs at a meat processing plant. Spoerle v. Kraft Foods Global, Inc., 527 F.Supp.2d 860, 2007 WL 4564094, *1 (W.D. Wis. 2007). Defense attorneys moved for summary judgment arguing that the class action claims fell within the Portal-to-Portal Act exception, that the allegations in the class action complaint did not constitute “changing clothes” within the meaning of the FLSA, and that in any event the class action claims fell within the FLSA’s “_de minimis_” exception. Id. (While such dispositive motions are generally inappropriate prior to the court’s ruling on a class action certification motion, plaintiffs stipulated that they would not seek class action treatment until the court ruled on the summary judgment motion, id.) Except as explained in the Note, below, the district court denied the defense motion because it could not find as a matter of law “that the donning and doffing of the equipment at issue in this case is excluded from the protections of the FLSA,” id.

The district court stated at page 1, “This case presents a straightforward question: does the Fair Labor Standards Act, 29 U.S.C. §§ 201-219, require defendant Kraft Foods Global, Inc., to pay its employees for time they spend putting on and taking off items of safety and sanitation equipment that defendant’s policies and federal law require the employees to wear?” Kraft operates a meat processing plant in Wisconsin and requires employees to use time clocks “typically [located] right outside the ‘production area’” to track their time. Spoerle, at *1. Federal law, as well as company policy, requires employees wear safety and sanitation equipment in the production area, which “includes a hard hat or bump cap, steel-toed shoes or sanitation boots, ear plugs, hairnet and beard net, safety glasses, a freezer coat (if necessary), gloves, plastic gloves, paper frock or plastic apron, sleeves, slickers (for employees that work in wet areas) or a cotton frock (employees may choose to wear cotton pants and a shirt instead, which the parties refer to as ‘career clothes’).” Id. Failure to wear the required equipment may lead to discipline, id. The gravamen of the class action is that some of these items – all of which are owned by the employer and stored at the plant – must be put on before clocking in, id., at *2. The court noted that “The current collective bargaining agreement between plaintiffs and defendant does not guarantee compensation for the time spent donning and doffing personal protective equipment,” id., and noted further that Kraft did not dispute that such conduct was “work,” id., at *3; rather, the defense argued that the conduct falls within an exception.

First, Kraft’s class action defense argued that under the Portal-to-Portal Act, the conduct at issue constituted “preliminary” and “postliminary” activities that are “withdrawn from the pay mandates of the FLSA” because they are activities “‘which 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.’” Spoerle, at *3 (quoting 29 U.S.C. § 254(a)). The district court rejected this argument finding it “completely untenable” in light of Steiner v. Mitchell, 350 U.S. 247 (1956), and concluding that “[b]ecause plaintiffs need to put on the equipment in order to perform their job safely, their doing so is ‘an integral and indispensable part’ of a ‘principal activity.’” Id. The conduct at issue, the district court reasoned, was fundamentally different from the activity of merely changing clothes “under normal conditions,” so it fell outside the scope of the holding in Gorman v. Consolidated Edison Corp., 488 F.3d 586, 593 (2d Cir. 2007), id., at *3-*5, “which read Steiner as being limited to ‘workplace dangers that transcend ordinary risks,’” id., at *4. (The district court also discussed IBP, Inc. v. Alvarez, 546 U.S. 21 (2005), which also concerned the donning and doffing of protective gear for meat plant workers. See id., at *5.)

Second, defense counsel argued that the activity in question constituted “changing clothes” within the meaning of 29 U.S.C. § 203(o), which states that “the hours for which an employee is employed” does not include “any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.” Spoerle, at *6. Here, the collective bargaining agreement excluded compensation for changing clothes, so the issue was whether the donning and doffing of protective gear constituted “changing clothes.” Id. Because the equipment was required for the employees’ safety, the court held that it did not fall within the requisite definition, id., at *6-*8. At bottom, the activities at issue were “performed for the employer, for a uniquely job-related purpose and are under the employer’s control,” id., at*8. Accordingly, the court refused to hold as a matter of la that the activity constituted “changing clothes” within the meaning of § 203(o). Id.

Finally, the defense argued that “under the FLSA is that the amount of time it takes employees to don and doff their equipment and walk between the locker room and the production area is ‘de minimis’ and is therefore not compensable.” Spoerle, at *8. The district court rejected this argument, concluding that even if the activities in question required “only a few minutes” it would not grant summary judgment despite the fact that “a number of courts have concluded that any task or group of tasks is not compensable if it takes less than 10 minutes.” Id. (citation omitted). The court reasoned at page *8 that “no court has explained why 10 minutes of work is worthy of compensation but 9 minutes and 59 seconds is not.” The district court believed the de minimis test turns on the “administrative burden on the employer” in tracking the “additional time” at issue, not the amount of time itself, id., at *9. Because no evidence had been produced as to the difficulty in tracking the activities in question, summary judgment was inappropriate, id. Accordingly, the court denied the summary judgment motion. Id., at *10.

NOTE: In addition to the FLSA claims, the class action complaint “assert[ed] state law wage and hour claims” and alleged Kraft violated state employer record keeping laws. Spoerle, at *1. We do not discuss those claims here other than to note that defense attorneys sought summary judgment on the theory that “plaintiffs’ state law claims are barred under several theories of preemption and that Wisconsin law does not recognize a private right of action for plaintiffs’ record keeping claim,” id., and the district court held that the state law claims were not preempted by federal law, see id., at *10- *12, but that Wisconsin had not recognized a private right of action to enforce the record keeping regulations underlying the class action claims and, accordingly, Kraft was entitled to summary judgment as to that claim, see id., at *12-*13.

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