Mitchell v. JCG Indus., Inc.

• Decision Date: 18 March 2014
• Docket Number: No. 13–2115.,13–2115.
• Parties: Rochell MITCHELL, et al., individually and on behalf of all others similarly situated, Plaintiffs–Appellants, v. JCG INDUSTRIES, INC., and Koch Foods, Inc., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

745 F.3d 837

Rochell MITCHELL, et al., individually and on behalf of all others similarly situated, Plaintiffs–Appellants,

v.JCG INDUSTRIES, INC., and Koch Foods, Inc., Defendants–Appellees.

No. 13–2115.

United States Court of Appeals,Seventh Circuit.

Argued Jan. 7, 2014.

Decided March 18, 2014.

Jac A. Cotiguala, James B. Zouras, Stephan Zouras, LLP, Chicago, IL, for Plaintiffs–Appellants.

Stephen Novack, Novack & Macey LLP, Chicago, IL, for Defendants–Appellees.

Jane E. Notz, Office of the Attorney General, Chicago, IL, for Amicus Curiae.

Before WOOD, Chief Judge, and POSNER and KANNE, Circuit Judges.

POSNER, Circuit Judge.

The plaintiffs are employed in a poultry processing plant in Chicago owned by the defendants, affiliated corporations that we'll call “the employer.” The plaintiffs advance two claims: a claim by the two plaintiffs, suing jointly, that the employer has violated an overtime provision of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq.; and a class action claim (supplemental to the federal claim, see 28 U.S.C. § 1367(a)), made by the plaintiffs as the representatives of the class, that the employer's conduct violates an overtime provision of the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq. The federal law does not preempt the state law if the latter is more generous to employees, see 29 U.S.C. § 218(a); Spoerle v. Kraft Foods Global, Inc., 614 F.3d 427, 428–30 (7th Cir.2010), so even if we decide that the employer has not violated the federal law, we can find that it has violated the state law. The district judge granted summary judgment in favor of the employer on both claims, and having done so dismissed the plaintiffs' motion to certify a class with respect to the state-law claim. One might have expected the employer to press for certification, in order to preclude a further identical suit by others of its employees, see Randall v. Rolls Royce Corp., 637 F.3d 818, 820–21 (7th Cir.2011); but it did not.

The employees in question are line workers represented by a union—Chicago Joint Board, RWDSU (Retail, Whole sale and Department Store Union), http:// rwdsu. info/ about. htm (visited March 13, 2014, as were the other websites cited in this opinion)—that has a collective bargaining agreement with the employer. The line workers stand next to a conveyor belt and each worker performs various operations on chicken carcasses, such as deboning and evisceration, as each carcass, carried on the moving belt, arrives in front of him or her. For a comprehensive description of the process, see Tony Ashdown, “Poultry Processing,” www. ilo. org/ safework—bo okshelf/ english? content & nd=857170833; see also Kimberly Kindy, “Fight Picks Up Over Proposal to Speed Poultry–Processing Lines,” Wash. Post, Feb. 28, 2014, p. A3.

For obvious reasons, “rigid sanitation requirements must be met.” Ashdown, supra. So before beginning work in the morning the line workers are required to put on a sterilized jacket, plastic apron, cut-resistant gloves, plastic sleeves, earplugs, and a hairnet. They are required to remove this sanitary gear at the start of their half-hour lunch break and put it back on before returning to work. They are also told to wash their hands before eating, but given the nature of poultry processing would doubtless do it without being told to. The principal issue in the case, and the only one presented by the federal claim, is whether the time spent in changing during the lunch break is worktime that must be compensated. It's called “changing,” so we'll call it that too, but the term is imprecise. The workers do not change out of their clothes; they place the sanitary gear on top of their street clothes, and remove it.

The time the workers spend changing before and after eating lunch is time taken out of their lunch break rather than out of the four-hour shifts that precede and follow it. It thus leaves them with less time for actually eating. But compression of their eating time is not a concern that motivates the workers' suit; that it is not implies of course that the amount of time consumed in changing is indeed slight, as is further implied by the fact that the plaintiffs don't argue that the meal break is not a bona fide meal break. Were it not bona fide, they would be entitled to be paid for all thirty minutes. Since it's conceded to be bona fide, it is not worktime, 29 C.F.R. § 785.19(a) (“bona fide meal periods are not worktime”)—that is, time that the employer is required to compensate employees for even if (as in this case) there is a collective bargaining agreement between the employer and the employees' union and the agreement does not require such compensation. 29 C.F.R. § 778.223. The plaintiffs argue nevertheless that federal and state law requires that this changing time be compensated—and at 1.5 times the employees' regular wage because it is on top of their 40–hour weekly worktime and thus is overtime—even though the collective bargaining agreement makes the entire meal period noncompensable and the Fair Labor Standards Act does not require that meal periods be compensated.

The Act further excludes from the time during which an employee is entitled to be compensated at the minimum hourly wage (or, if it is overtime work, at 150 percent of the employee's regular hourly wage) “any time spent in changing clothes at the beginning or end of each workday which was excluded from measured working time ... by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.” 29 U.S.C. § 203( o ). The phrase we've italicized is the bone of contention over the applicability of section 203( o ) to this case. The lunch break does not take place at the beginning or end of the period in which the employees are at the plant, and the plaintiffs contend that only that period is the “workday.”

An initial doubt is whether that interpretation can possibly be correct given that many workers work (whether sometimes or only) at night. Nightworkers are called “shift workers” and are estimated to comprise 20 percent of the American workforce. See Sloan Work and Family Research Network, “Questions and Answers About Shift Work,” http:// workfamily. sas. upenn. edu/ sites/ workfamily. sas. upenn. edu/ files/ imported/ pdfs/ shiftwork. pdf. A busy factory might have three eight-hour shifts, such as 8 a.m. to 4 p.m., 4 p.m. to midnight, and midnight to 8 a.m. These workers have a “workday,” but it begins or ends at night (sometimes both). It would be called their “worknight” were there such a word, but because there isn't, “workday” has acquired two meanings: a day on which work is performed, and “the period of time in a day during which work is performed.” “Workday,” Merriam–Webster, www. merriam- webster. com/ dictionary/ workday. Workers given a half-hour lunch or other meal break from work are in effect working two four-hour workdays in an eight-and-a-half-hour period.

It would make no practical sense to draw the distinction urged by the plaintiffs. An eight-hour workday is standard. If the job requires changing at the beginning and end of the workday, and the time spent changing has to be compensated, the eight-hour workday becomes an eight-hour + some-minutes workday and so the employer has to pay overtime. Since changing time isn't working time, a union may decide not to press the employer to pay the workers for that time. That forbearance is likely to be mutually attractive because it avoids the bother of having to keep track of how long the changing takes (and it will differ for each worker) in order to determine what each worker is owed for that time. Hence the optional exemption in section 203( o ).

If as we believe “workday” includes “worknight,” it may also include four-hour shifts separated by meal breaks. It is true that a regulation defines “workday” to mean, “in general, the period between the commencement and completion on the same workday of an employee's principal activity or activities.” 29 C.F.R. § 790.6(b). But the qualifying phrase “in general” (paraphrased as “generally” in IBP, Inc. v. Alvarez, 546 U.S. 21, 29, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005)) allows room for an exception; and there is compelling reason to recognize an exception in this case. (It is noteworthy that section 203( o ) does not mention meal breaks, hence does not consider the effect they may have on a practical definition of “workday.”) The identical considerations attend payment for time changing at the beginning and end of a meal break as at the beginning and end of either a conventional “workday” or the lexicographically challenged “worknight.”

Still another reason to interpret “workday” in this manner is that the Fair Labor Standards Act does not require employers to provide meal breaks at all. Whether to provide them is left up to collective bargaining if as in this case the workplace is unionized. And if they are provided, then as long as they're “bona fide,” the time they take doesn't have to be compensated. 29 C.F.R. § 785.19. The regulation gives, as an example of a meal break that is not bona fide, when “a factory worker who is required to be at his machine is working while eating.” The plaintiffs in this case do not argue that their lunch break is not bona fide.

As the Supreme Court pointed out recently in a related context, “simply put, [section 203( o ) ] provides that the compensability of time spent changing clothes or washing is a subject appropriately committed to collective bargaining.” Sandifer v. U.S. Steel Corp., ––– U.S. ––––, 134 S.Ct. 870, 876, 187 L.Ed.2d 729 (2014). To interpret section 203( o ) narrowly disserves the interest of workers by narrowing the scope of collective bargaining and, as in this case, setting a group of workers against their union. There are good practical reasons why the union in this case did not negotiate for making the time compensable. To determine how much...