State May Force Kraft to Pay for Time Gearing Up

     CHICAGO (CN) – A class action seeking back pay from Kraft Foods Global for the time workers spend donning and doffing protective gear can advance in state court, a federal judge ruled.

     Lead plaintiff Steven Whitmore filed suit in Cook County Circuit Court, seeking wages for time spent putting on and taking off equipment to work at Kraft’s Chicago plant.
     At the start of each work day, Whitmore said he must put on “safety footwear, white frocks, hairnets, earplugs, hardhats, bump hats and protective aprons” before walking to his work location. At the end of the work day, Whitmore returns to that room where he donned the equipment and undress.
     Kraft does not pay employees for the time spent donning and doffing protective work gear, and the workers’ union contract specifically states that employees cannot seek compensation for “time spent in changing clothes, washing and engaging in any other non-productive activities at the beginning or end of each workday.”
     Whitmore’s complaint, however, alleges violations of the Illinois Minimum Wage Act and the Illinois Wage Payment and Collection Act, rather than the collective bargaining agreement (CBA).
     Kraft removed the complaint to federal court, which delayed the case as the 7th Circuit resolved a similar dispute also involving Kraft, Spoerle v. Kraft. By August 2010, the federal appeals court decided that a section of federal labor law governing CBAs does not pre-empt a Wisconsin law mandating wages for doffing and donning gear.
     As such, U.S. District Judge Edmond Chang agreed to remand Whitmore’s case to state court.
     “In other words, a CBA cannot trump rights to which employees are entitled under state law: ‘Management and labor acting jointly (through a CBA) have no more power to override state substantive law than they have when acting individually,'” Chang wrote.
     Though Kraft argued that Illinois does not have a relevant law on the topic, compared to Wisconsin, Chang rejected the contention that “silence automatically equals non-coverage.”
     “Federal preemption of state laws has generally applied when ‘state laws create a risk of taking away employee rights provided by collective bargaining … not when state laws add a right that is independent from the agreement,” the 14-page ruling states.
     Where this is not the case, and where uniformity of interpretation is not at issue, the Fair Labor Standards Act “does not convert state law complaints into federal claims merely because the parties have entered into a CBA.”

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