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Summary

At issue in this class action is whether donning and doffing of protective equipment by employees must be compensated by an employer. Wisconsin Court of Appeals Judge Hue’s decision to interpret Wisconsin law independent of federal employment law is a significant departure from other federal court decisions in this area. Judge Hue decided in favor of the Plaintiffs; Tyson Foods has appealed and the Wisconsin Supreme Court will hear the case in 2014.

Details

In 2013, Wisconsin Court of Appeals Judge William Hue issued a decision in the Weissman et al., v. Tyson Foods, Inc. case. The case was on appeal from the lower court’s decision granting summary judgment in favor of the employer. 2013 WI App 103 (2013). The Plaintiffs in Weissman brought a wage and hour class action against Tyson Foods claiming they should have been paid for time spent donning and doffing protective equipment. The Plaintiffs claim that because they were required by law, by the employer’s rules, and by the nature of the work to change clothing on the employer’s premises, the activity of donning and doffing sanitary and protective equipment and clothing was integral and indispensable to their principal activities and therefore compensable under Wisconsin law.

The circuit court granted summary judgment in favor of Tyson Foods and dismissed the case. The Plaintiffs appealed, asking Judge Hue to decide:

Whether donning and doffing of the PPE [hair nets, beard nets, frocks, vinyl gloves, vinyl sleeves, bump caps, safety glasses, ear plugs and captive shoes, or shoes worn only at the plant – some items are color coded by area] as required by Tyson constituted “an integral part of principal activity” under Wis. Admin. Code 272.12(2)(e).

Judge Hue reversed the summary judgment ruling of the lower court and found that under plain terms of Department of Workforce Development code, donning and doffing constituted “preparatory and concluding” activities that were an “integral part of a principal activity” and the time was therefore compensable. The decision is significant because it represents a departure from many federal court (including the 7th Circuit) decisions on the compensability of donning and doffing claims.

In his decision, Judge Hue explains nothing in the applicable Wisconsin statutes or administrative code requires Wisconsin courts to interpret Wisconsin laws in accordance with federal statutes, regulations or federal court decisions. As such, he provided his own analysis of the applicable statute and code provisions and determined the donning and doffing in this case was compensable for the following reasons:

(1) The donning and doffing was Controlled and Required by the employer. There was no dispute that donning and doffing at issue was controlled and required by Tyson Foods. Wis. Admin. Code DWD § 272.12.

(2) The donning and doffing was necessarily for the benefit of the employer’s business. Tyson Foods had to follow federal regulations requiring workers in a plant like Tyson’s to adhere to hygienic practices; the fact the food was uncontaminated was a benefit to Tyson. Wis. Admin. Code DWD § 272.12.

(3) All time in a workweek (time during which an employee is required to be on the employer’s premises) is compensable. This donning and doffing had to be done on Tyson’s premises and was part of time spent working during the workweek. Wis. Admin. Code DWD § 272.12.

(4) Employees must be compensated for principal activities including those preparatory and concluding activities that are an integral part of a principal activity. Whether something is an integral part of the principal activity depends in part on whether it is closely related to the principal activity. Tyson Foods required the donning and doffing of sanitary and protective equipment on the premises for purposes of allowing employees to perform principal activities in a safe, sanitary and efficient manner – that’s closely related.

i. Furthermore, whether something is an integral part of the principal activity depends on whether it is indispensable to the principal activity’s performance. Donning and doffing the items Tyson required was not just for comfort or advantage of employee. Tyson employees could not perform their principal activities without donning and doffing as required by Tyson and avoiding contamination makes it indispensable.

(5) Comments on Pirant v. United States Postal Service, 542 F.3d 202 (7th Cir. 2008). Wis. Admin. Code DWD § 272.12(2)(e)1.c specifically contemplates that changing clothing may be a potentially compensable activity, such as when it is not merely a convenience to the employee. An additional test in the federal case law as articulated in Pirant, namely, whether donned clothing or equipment is extensive and unique, is not tied to the specific language used in the Wisconsin Administrative Code. A court cannot read additional terms into the Wisconsin Department of Workforce Development’s administrative code provisions.

The Wisconsin Supreme Court granted Tyson’s petition for review appeal on December 13, 2013. The parties are in the process of briefing their arguments for the Court.

Summer Murshid

Shareholder at Hawks Quindel, S.C.
Attorney Murshid’s practice focuses largely on federal class action wage litigation, which means she spends the lion’s share of her waking moments making sure she’s doing everything she can to ensure every employer in the great State of Wisconsin pays every employee fairly and legally. Summer devotes the rest of her law practice to litigating on behalf of individual clients who need assistance with a wide range of employment issues.