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Kraft Foods Stuffs Workers’ Class Action

CHICAGO (CN) - Kraft Foods employees cannot sue the conglomerate for failing to pay them for time spent donning and doffing work gear, thanks to a longstanding collective bargaining agreement, a federal judge ruled.

Kraft Foods employees brought a class actionagainst the company in July 2011, for not paying them for time spent donning and doffing protective work gear.

Before entering the production floor of Kraft's Naperville plant, which produces Triscuit crackers, workers must don "shoes, safety glasses, hearing protection, hairnets, beard nets, Kraft-issued T-shirt or snap shirt, and work pants," U.S. District Judge Virginia Kendall wrote in her Memorandum Opinion and Order.

The plaintiffs acknowledged in their complaint that the "work time claimed herein is not compensable under the collective bargaining agreements pursuant to which the plaintiffs and members of the putative class are employed."

However, the complaint alleged violations of the Illinois Minimum Wage Act and Illinois Wage Payment and Collection Act, rather than the collective bargaining agreement. Kendall certifiedthe class in September 2011.

In a previous case against Kraft, the 7th Circuit found in 2010 that federal labor law governing collective bargaining agreements does not pre-empt a Wisconsin law mandating wages for donning and doffing required work gear.

There is no comparable law in Illinois.

Kendall granted Kraft's motion for summary judgment "because the longstanding custom of non-compensation for donning and doffing between the plaintiffs and Kraft makes such pay unrecoverable."

"The Illinois statutes under which plaintiffs assert their claims are silent with respect to the issue of whether donning or doffing time is compensable," and the court must look to federal labor statutes for guidance, Kendall said.

"The default rule under the Fair Labor Standards Act is that donning and doffing time is compensable as time worked. However, section 203(o) allows for management and the union to enter into a collective bargaining agreement that excludes from 'Hours Worked' any time spent changing clothes."

Kendall found that "the undisputed material facts show that Kraft and the unions have developed a custom or practice of non-payment for the time spent donning and doffing the items at issue here. ... Since it acquired the facility roughly 20 years ago, Kraft has never paid for time spent donning or doffing. It is no stretch to say that the hourly employees acquiesced in a policy of non-payment for clothes changing."

Kendall concluded that the longstanding custom of non-payment for donning and doffing clothes "is the kind of understanding between a union and an employer that section 203(o) is designed to protect."

In December 2009, the 4th Circuit came to the same conclusion in a substantively similar caseagainst Allen Family Foods, finding that donning and doffing protective gear can be excluded from paid time according to union negotiations.

In that case, Appellate Judge J. Harvie Wilkinson wrote: "We stress that our decision does not leave these employees without protection. It simply recognizes that Congress has made a policy choice that, when it comes to time spent changing clothes and washing, the respective interests involved are best protected through the collective bargaining process and the agreements negotiated pursuant thereto."

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