Spoerle v. Kraft Foods Global, Inc.

• Decision Date: 31 December 2007
• Docket Number: No. 3:07-cv-00300-bbc.,3:07-cv-00300-bbc.
• Parties: Jeff SPOERLE, Nick Lee, Kathi Smith, Jason Knudtson, on behalf of themselves and all others who consent to become Plaintiffs and similarly situated employees, Plaintiffs, v. KRAFT FOODS GLOBAL, INC., Oscar Mayer Foods Division, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

527 F.Supp.2d 860

Jeff SPOERLE, Nick Lee, Kathi Smith, Jason Knudtson, on behalf of themselves and all others who consent to become Plaintiffs and similarly situated employees, Plaintiffs, v. KRAFT FOODS GLOBAL, INC., Oscar Mayer Foods Division, Defendant.

No. 3:07-cv-00300-bbc.

United States District Court, W.D. Wisconsin.

December 31, 2007.

Kurt C. Kobelt, Lawton & Cates, S.C., Madison, WI, for Plaintiffs.

Daniel A. Kaplan, Foley & Lardner, Madison, WI, for Defendant.

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

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?

Plaintiffs contend that they are entitled to compensation because donning and doffing the equipment constitutes "work" under the FLSA. Although defendant does not dispute plaintiffs' basic characterization, it argues that the work is not compensable under several of the statute's exceptions involving "preliminary" and "postliminary" activities, "changing clothes" and "de minimis" acts.

In addition to their claim under the FLSA, plaintiffs assert state law wage and hour claims under Wis. Stat. §§ 109.03 and 103.02, as well as a claim for violations of Wis. Admin. Code §§ DWD 272.10 and 274.06, which impose requirements for employer record keeping. Defendant contends 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.

Plaintiffs filed this suit as a purported class action but they have not yet moved for class certification. They have stipulated with defendant to refrain from seeking class certification until the court resolves the defendant's motion for summary judgment. Having reviewed the parties' submissions, I conclude that defendant's motion for summary judgment must be denied in most respects. On the current record, I cannot conclude 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. With respect to plaintiffs' state law claims, none of defendant's preemption arguments is persuasive. However, because plaintiffs have failed to show that they have a right to sue for enforcement of the record keeping requirements, I will grant defendant's motion for summary judgment with respect to that claim.

From the parties' proposed findings of fact and the record, I find the following facts to be undisputed.

UNDISPUTED FACTS

Defendant Kraft Foods Global, Inc. operates a meat processing plant in Madison, Wisconsin through its Oscar Mayer Foods Division. Plaintiffs Jeff Spoerle, Nick Lee, Kathi Smith and Jason Knudtson are employees at the plant.

Defendant tracks its employees' hours of work using time clocks, which are located throughout the plant, typically right outside the "production area." Using a credit card-like badge, employees clock in just before entering the production area and clock out for meals and at the end of their shift when they leave the production area.

Under federal' law and company policy, employees who work in the production area must wear various items of "personal protective equipment." This equipment 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"). Employees may be disciplined for failing to wear this equipment.

Employees must put on some of these items before clocking in. Employees retrieve and put on cotton frocks or career clothes and steel-toed shoes or sanitation boots in a locker room at the plant. On their way to clocking in, employees put on ear plugs, hairnets and beard nets, which are kept in bins near the locker room. (The parties do not identify where employees put on hard hats, bump caps, safety glasses and freezer coats, but they agree that employees must put on these items before clocking in.) All of these items are owned by defendant and stored at the plant. After walking to the time clock and swiping their time cards, employees put on plastic gloves, aprons and slickers. (Neither side proposes any facts regarding what happens at the end of the shift, but it is reasonable to infer that it is the same as the beginning of the shift, that is, employees are paid for taking off gloves, aprons and slickers, but not for doffing the other items or for walking back to the locker room.)

The current collective bargaining agreement between plaintiffs and defendant does not guarantee compensation for the time spent donning and doffing personal protective equipment.

OPINION

A. Fair Labor Standards Act

Although the Fair Labor Standards Act includes many different provisions, its core requirement, can be reduced to a simple and now uncontroversial proposition: employers must pay their employees a wage for all of the "work" that they do. 29 U.S.C. §§ 206 and 207; Smith v. Aztec Well Servicing Co., 462 F.3d 1274, 1285 (10th Cir.2006); Alvarez v. IBP, Inc., 339 F.3d 894, 902 (9th Cir.2003). There are two related exceptions to this rule that are relevant to this case. Work may not be compensable under the FLSA if it (1) is "preliminary to or postliminary to" the employee's "principal" activities and if it occurs "prior to" or "subsequent to" the "workday," 29 U.S.C. § 254(a)(2); or (2) consists of "changing clothes," 29 U.S.C. § 203(o). A third non-statutory exception has been carved out by the courts, which is whether a particular activity is "de minimis."

The FLSA does not define "work," but the Supreme Court has construed it broadly. One commonly cited definition comes from Tennessee Coal, Iron & Rail Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944): "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." But even this view may sound more restrictive than it actually is. The reference to "physical or mental exertion" does not mean that only heavy labor and solving equations are covered. The Court has placed much greater emphasis on "[w]hether time is spent predominantly for the employer's benefit or for the employee's," Armour & Co. v. Wantock, 323 U.S. 126, 133-34, 65 S.Ct. 165, 89 L.Ed. 118 (1944), on the ground that "[n]othing in the statute or in reason demands that every moment of an employee's time devoted to the service of his employer shall be directly productive." Tennessee Coal, Iron & Rail Co., 321 U.S. at 599, 64 S.Ct. 698; see also Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 691, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946) (concluding that nonproductive activity was "work" because it "was under the complete control of the employer"). Thus, the Court has concluded that "work" encompasses activities such as traveling on a railcar through a mine shaft, watching and guarding a building, Tennessee Coal, Iron & Rail Co., 321 U.S. at 599, 64 S.Ct. 698, and even standing and waiting, Armour & Co., 323 U.S. at 133-34, 65 S.Ct. 165.

Defendant does not refute plaintiffs' assertion that donning and doffing the personal protective equipment is "work" under the Supreme Court's definition. Rather, it argues that plaintiffs' conduct falls within the exceptions listed above. I will consider each of those in turn.

1. Preliminary and postliminary activities

Under the Portal-to-Portal Act, certain activities are withdrawn from the pay mandates of the FLSA, including "activities which are preliminary to or postliminary to [a] principal activity or 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." 29 U.S.C. § 254(a). Defendant believes that the donning and doffing of protective equipment constitutes noncompensable "preliminary" and "postliminary" activities.

Defendant's view might be plausible looking at the language of the statute in isolation, but it is completely untenable in light of the Supreme Court's interpretations of the statute. The question in Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956), was whether chemical plant employees were engaging in "preliminary" and "postliminary" activities under § 254(a) when they showered and changed their clothes immediately before and after working with toxic chemicals. After reviewing the statute's legislative history, the Court concluded that Congress "did not intend to deprive employees of the benefits of the Fair Labor Standards Act where they are an integral part of and indispensable to their principal activities." Id. at 256, 76 S.Ct. 330. Applying this standard, the Court quickly rejected the employer's argument that the Portal-to-Portal Act relieved it of the obligation to pay its employees for the activities in dispute, stating that "it would be difficult to conjure up an instance where changing clothes and showering are more clearly an integral and indispensable part of the principal activity of the employment than in the case of these employees." Id.

In light of Steiner, it is difficult to credit any argument that the Portal-to-Portal Act applies in this case. Like the clothes changing in Steiner, plaintiffs' donning of equipment is performed for the purpose of protecting the employee from work-related hazards and occurs immediately before entering the production area. Because plai...