Weissman v. Tyson Prepared Foods, Inc.

Decision Date01 August 2013
Docket NumberNo. 2012AP2196.,2012AP2196.
Citation838 N.W.2d 502,2013 WI App 109,350 Wis.2d 380
PartiesJim WEISSMAN, Keith Griep, Randy Garrett, Gregory Peters, Shannon Fitzpatrick and James Geneman, Plaintiffs–Appellants, v. TYSON PREPARED FOODS, INC., Defendant–Respondent.
CourtWisconsin Court of Appeals

OPINION TEXT STARTS HERE

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Douglas J. Phebus of Arellano & Phebus, S.C., Middleton.

On behalf of the defendant-respondent, the cause was submitted on the brief of Thomas P. Krukowski and Keith E. Kopplin of Krukowski & Costello, S.C., Milwaukee, and Joel M. Cohn, Ruthanne M. Deutsch, and Brittani S. Head of Akin Gump Strauss Hauer & Feld, LLP, Washington, DC.

A nonparty brief was filed by Mark A. Sweet of Sweet and Associates, LLC, Milwaukee, for United Food & Commercial Workers Union Local 1473.

Before BLANCHARD P.J., LUNDSTEN and KLOPPENBURG, JJ.

BLANCHARD, P.J.

¶ 1 Tyson Prepared Foods, Inc., operates a meat processing plant in Jefferson, Wisconsin. Six hourly employees who work in the plant filed this wage claim action, as a class action, against Tyson under Chapter 109 of the Wisconsin Statutes. The employees allege that they are entitled to compensation for time they spend at the plant putting on (“donning”) and taking off (“doffing”) sanitary and protective equipment and clothing as required by Tyson and also time spent walking to and from work stations after donning and before doffing these items. The circuit court granted summary judgment to Tyson on all the employees' claims on the ground that, under the pertinent Department of Workforce Development (DWD) administrative code provisions, donning and doffing this gear is not compensable because it is not “integral” and “indispensable” to principal work activities of the employees. The employees appeal.

¶ 2 We agree with the employees that, under the plain terms of the DWD code, the donning and doffing here constitute “preparatory and concluding” activities that are “an integral part of a principal activity,” seeWis. Admin. Code § DWD 272.12(2)(e) (February 2009),1 and therefore the donning and doffing time is compensable, putting aside the merits of any potential “de minimis” argument that might be available to Tyson on remand. Accordingly, we reverse on this basis and remand for further proceedings. Separately, because the parties have failed to develop independent arguments on the question of whether time spent walking to and from work stations after donning and before doffing is compensable, we do not reach that question.

BACKGROUNDFacts

¶ 3 The following are assertions of fact in the summary judgment materials. Under standard summary judgment methodology, we view these assertions in the light most favorable to the employees.

¶ 4 Tyson employees at the Jefferson plant produce primarily pepperoni for pizza toppings. As a company policy, Tyson requires plant employees, including the plaintiffs, to don sanitary and protective equipment and clothing before they begin their principal duties each shift, and to doff these items at the ends of shifts. More specifically, as a condition of employment, employees must don and doff, while at the workplace, some combination of the following: hair nets; beard nets, if applicable; frocks (as Tyson explains, a frock is “like a coat with snaps in front”); vinyl gloves; vinyl sleeves; bump caps (lightweight hard hats); safety glasses; ear plugs; and “captive shoes,” meaning shoes worn only in the plant and no place else, or rubber boots or rubbers over shoes, and in some cases steel toed shoes. The frocks and bump caps are color coded by work area or by responsibility of the wearer. Certain of these items are worn at least in part to prevent contamination of food.

¶ 5 Employees are not paid for at least some of the time they spend donning and doffing these items. Similarly, they are not paid for at least some of their time travelling on company property after donning and before doffing.

Pertinent Statutes and Administrative Code Provisions
Wisconsin

¶ 6 As relevant here, Wis. Stat. § 109.03(1) (2011–12) 2 provides that employers “shall as often as monthly pay to every employee engaged in the employer's business ... all wages earned by the employee.” The DWD is charged with promulgating the rules at issue in this case, specifically with promulgating “rules fixing a period of time, or hours of beginning and ending work during any day, night or week.” Wis. Stat. § 103.02.

¶ 7 Wisconsin Admin. Code § DWD 272.12 provides, as “general requirements,” [p]rinciples for determination of hours worked.” Under these general requirements, employees must be compensated

for all time spent in “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's business.” The workweek ordinarily includes “all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed work place.”

Section DWD 272.12(1)(a)1. Section DWD 272 defines “workday” in relevant part through the concept of an employee's “principal activities”:

the period between “the time on any particular workday at which such employee commences [his or her] principal activity or activities and “the time on any particular workday at which [he or she] cease[s] such principal activity or activities. The “workday” may thus be longer than the employee's scheduled shift, hours, tour of duty, or time on the production line.

Section DWD 272.12(1)(a)2. (emphasis added).

¶ 8 Central to the issue presented here, the code defines “principal activities” to include those “preparatory and concluding activities” that “are an integral part of a principal activity.” Wis. Admin. Code § DWD 272.12(2)(e).

¶ 9 The code gives the following “examples of what is meant by an integral part of a principal activity,” which is time for which employees must be compensated, although as we explain below only the third example involving a chemical plant worker is disputed by the parties:

a. In connection with the operation of a lathe, an employee will frequently, at the commencement of [his or her] workday, oil, grease, or clean [his or her] machine, or install a new cutting tool. Such activities are an integral part of the principal activity, and are included within such term.

b. In the case of a garment worker in a textile mill, who is required to report 30 minutes before other employees report to commence their principal activities, and who during such 30 minutes distributes clothing or parts of clothing at the workbenches of other employees and gets machines in readiness for operation by other employees, such activities are among the principal activities of such employee. Such preparatory activities are compensable under this chapter.

c. Among the activities included as an integral part of the principal activity are those closely related activities which are indispensable to its performance. If an employee in a chemical plant, for example, cannot perform [his or her] principal activities without putting on certain clothes, changing clothes on the employer's premises at the beginning and end of the workday would be an integral part of the employee's principal activity. On the other hand, if changing clothes is merely a convenience to the employee and not directly related to [his or her] principal activities, it would be considered as a “preliminary” or “postliminary” activity rather than a principal part of the activity. However, activities such as checking in and out and waiting in line to do so would not ordinarily be regarded as integral parts of the principal activity or activities.

Wis. Admin. Code § DWD 272.12(2)(e)1.a.-c. (emphasis added).

¶ 10 To summarize, then, in the terms of the regulation, the employees here argue that their “preparatory and concluding activities” of donning and doffing at either end of the work day, as well as the time they spend walking to and from work stations after donning or before doffing these items, should be counted as “integral parts” of “principal activities” under Wis. Admin. Code § DWD 272.12(2)(e), and therefore compensable. The employees point to the chemical plant worker example in § DWD 272.12(2)(e)1.c. as analogous to their situation. In contrast, Tyson argues that these “preparatory and concluding activities” are not “integral” to the employees' “principal activities” and therefore should not be deemed “principal activities,” specifically because the items donned and doffed are not “unique and extensive.” Tyson also points to the chemical plant worker example, but argues that it is not analogous to the situation here.

Federal

¶ 11 Some language contained in the DWD regulations is identical or similar to that used in portions of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., and accompanying federal regulations. However, as discussed further below, no Wisconsin statute or DWD administrative code provision directs that the DWD code provisions pertinent here should be interpreted as incorporating federal statutes, federal regulations, or federal court interpretations of either the federal statutes or federal regulations.

¶ 12 Specific aspects of federal law raised by Tyson are addressed in the discussion below. It is sufficient to note at the outset that in 29 C.F.R. §§ 785.24 and 790.8, which are regulations promulgated by the U.S. Department of Labor based on the FLSA, the phrase “principal activities”is defined to include “all activities which are an integral part of a principal activity.” Following this statement are the three examples given above in Wis. Admin. Code § DWD 272.12(2)(e)1.a.-c.—the lathe preparer, the garment worker distributing clothing parts, and the chemical plant worker—using language that generally tracks language used in the Wisconsin regulations. See29 C.F.R. §§ 785.24 and 790.8...

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