Spoerle v. Kraft Foods Global, Inc.

• Decision Date: 16 June 2009
• Docket Number: No. 07-cv-300-bbc.,07-cv-300-bbc.
• Citation: 626 F.Supp.2d 913
• Court: U.S. District Court — Western District of Wisconsin
• 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.

Page 913

626 F.Supp.2d 913

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. 07-cv-300-bbc.

United States District Court, W.D. Wisconsin.

June 16, 2009.

Douglas Phebus, Heather Curnutt, Lawton & Cates, S.C., Sarah E. Siskind, Miner, Barnhill & Galland, P.C., Madison, WI, for Plaintiffs.

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

OPINION and ORDER

BARBARA B. CRABB, District Judge.

Plaintiffs Jeff Spoerle, Nick Lee, Kathi Smith and Jason Knudtson brought this combined collective action under the federal Fair Labor Standards Act and class action under state law, contending that hourly employees at the Oscar Mayer plant in Madison, Wisconsin should be paid for the time spent donning and doffing a number of safety and sanitation articles and walking to and from their work stations at the beginning and end of their shifts. In its original motion for summary judgment, defendant Kraft Foods Global, Inc. argued that federal law does not require compensation because these activities fall within several exceptions to the FLSA definition of "work" involving "preliminary" and "postliminary" activities, "changing clothes" and "de minimis" acts. In addition, it argued that any Wisconsin laws requiring payment were preempted under several different theories. In an order dated December 31, 2007, I denied defendant's motion because it failed to show as a matter of law that any of the exceptions applied or that federal law preempted state law. Spoerle v. Kraft Foods Global, Inc., 527 F.Supp.2d 860 (W.D.Wis.2007).

Just before the trial was scheduled to begin in July 2008, the parties came to a "settlement" of sorts. Under their agreement, plaintiffs limited the scope of their claims to seeking compensation for time spent the last two years walking between the locker room and work stations and donning and doffing the following items: captive footwear (boots or shoe rubbers), head gear (hard hats or bump caps), hairnets, beard nets and frocks or career clothing. For its part, defendant withdrew all but two of its defenses: (1) donning and doffing the items at issue falls within the "changing clothes" exception to compensable work under 29 U.S.C. § 203(o); and (2) plaintiffs' state law claims are preempted by federal law. The parties submitted a stipulation of facts and agreed to a formula for calculating damages in the event that plaintiffs prevailed on liability. Dkt. # # 242, 274.

Now before the court are the parties' cross motions for summary judgment, as anticipated by the agreement. Although Pirant v. United States Postal Service, 542 F.3d 202, 208-09 (7th Cir.2008), muddies the waters somewhat with respect to the scope of plaintiffs' rights under the FLSA, I conclude that § 203(o) does not preempt more generous state laws even if the articles at issue in this case are "clothes" within the meaning of § 203(o). Because the parties agree that state law does require defendant to pay plaintiffs for donning and doffing these articles and that plaintiffs are entitled to full relief under the settlement if they are successful on their federal law claims or their state law claims, it is unnecessary to determine whether plaintiffs are entitled to prevail under the FLSA. Judgment will be entered in favor of plaintiffs.

The following facts are taken from the parties' joint stipulation of facts. Dkt. # 240.

UNDISPUTED FACTS

Defendant Kraft Foods Global, Inc. operates a meat processing plant in Madison, Wisconsin through its Oscar Mayer Foods division. Plaintiffs are current or former employees at the Madison plant. (782 employees have filed consents to join the suit under the FLSA; three members of the class have opted out of the state law claims.)

Federal law and defendant's policies require employees to don a number of articles for purposes of safety and sanitation. Defendant requires plaintiffs to don and doff some of these articles without being paid for doing so, that is, before the beginning of their shift and after the end of their shift. These articles include: captive footwear (shoe rubbers, over-the-calf rubber boots, or work boots), hairnets, beard nets (if an employee has a beard), hard hats or bump caps, frocks or career clothing (shirt, pants and jacket). The footwear and career clothing generally are worn in place of plaintiffs' own clothes; the frocks are worn over those clothes.

Plaintiffs are not permitted to remove any of the articles from the plant. The articles are stored in or near the locker room. Plaintiffs may don the articles there or on their way to the production area, where the time clock is. The process is reversed at the end of the shift; after plaintiffs clock out, they may remove the articles and return them to the area they are stored. Depending on each plaintiff's department, it takes between five and twelve minutes to don and doff these articles and walk to and from the locker room and production area.

Since 1985, defendant has not paid its employees for donning and doffing these articles, pursuant to the collective bargaining agreement between defendant and plaintiffs' union.

OPINION

The focus of the parties' remaining disputes is the proper scope of 29 U.S.C. § 203(o):

Hours Worked.—In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded 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.

As now constituted, the case raises two questions: (1) are the articles that plaintiffs are required to don and doff exempt from the requirements of the FLSA because they are "clothes" within the meaning of 29 U.S.C. § 203(o); and (2) if they are exempt, does § 203(o) preempt Wisconsin law that does not contain an exception for "changing clothes"? (I do not address the issue that some courts have, e.g., Figas v. Horsehead Corp., 2008 WL 4170043, *6 (W.D.Pa. Sept. 3, 2008), which is whether the donning and doffing of the articles qualifies as "changing" within the meaning of § 203(o), because the parties do not raise it.)

With respect to the question under § 203(o), in the December 31, 2007 order, I rejected the "I know it when I see it" approach to defining the term "clothes" advanced by defendant. In the cases defendant relied on at summary judgment, courts had concluded that certain articles used for safety and sanitation were "clothes" without explaining why or providing a definition of the term. E.g., Anderson v. Cagle's, Inc., 488 F.3d 945, 955-56 (11th Cir.2007); Bejil v. Ethicon, Inc., 269 F.3d 477, 480 n. 3 (5th Cir.2001); Kassa v. Kerry, Inc., 487 F.Supp.2d 1063, 1067 (D.Minn.2007). Instead, I followed the lead of the court in Fox v. Tyson Foods, Inc., No. CV-99-BE-1612-M, 2002 WL 32987224, *11 (N.D.Ala. Feb. 4, 2002), in which the court had noted that "changing clothes" is "an everyday, plain-language term that describes what most people do every day—taking off pajamas to put on work clothes in the morning, or taking off dress clothes to put on casual wear in the evening." Under "[t]his view, the relevant questions [are] straight forward: Is the article something the employee would normally wear anyway (or does it replace such clothing)? Or is it something the employee wears in addition to those clothes and is required to do so for a job-related reason?" Spoerle, 527 F.Supp.2d at 867. See also Hoyt v. Ellsworth Co-op. Creamery, 579 F.Supp.2d 1132, 1137 (W.D.Wis.2008) (Shabaz, J.) (adopting same definition); Perez v. Mountaire Farms, Inc., No. CIV. AMD 06-121, 2008 WL 2389798, *3 (D.Md. June 10, 2008) (same). Because the parties had adduced little evidence regarding the nature and purpose of the articles at issue, I concluded that defendant had failed to show as a matter of law that the articles met this standard.

Without saying so explicitly, defendant is seeking reconsideration of the summary judgment order by asking for a new interpretation of § 203(o). In particular, defendant argues that the meaning of "changing clothes" should be governed by the collective bargaining agreement so long as that agreement is "bona fide." Not surprisingly, defendant believes that the standard is met in this case and that the court should give "deference" to the collective bargaining agreement, which does not require compensation for donning and doffing the articles in dispute.

Defendant's position has some surface appeal. From the courts' perspective, it could eliminate the task of construing an ambiguous statutory term. From the employers' and employees' perspectives, it could provide greater certainty over the scope of their respective rights and obligations because one need only consult the collective bargaining agreement to determine whether donning and doffing particular items is a compensable activity.

A closer view of defendant's proposal reveals serious flaws. For one thing, it collapses a two-part question under the statute into a single inquiry. Under § 203(o), donning and doffing particular articles may be excluded from an employee's "hours worked" if two conditions are met: (1) the activity is excluded from compensation "by the express terms of or by custom or practice under a bona fide collective-bargaining agreement"; and (2) the activity constitutes "changing clothes." Figas, 2008 WL 4170043, at *6 ("Inherent in this defense [under § 203(o)] are two separate elements"). Under defendant's view, once it is determined that the act of donning and doffing particular articles is not protected by the collective bargaining agreement, the analysis is complete. In...