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Wisconsin Justices Uphold Pay for Time Spent Putting on Work Gear

The Wisconsin Supreme Court ruled Thursday that workers cannot negotiate away their right to compensation for time spent putting on and taking off protective gear and walking to and from their workstations.

MADISON, Wis. (CN) — The Wisconsin Supreme Court ruled Thursday that workers cannot negotiate away their right to compensation for time spent putting on and taking off protective gear and walking to and from their workstations.

The decision is a win for employees who have been in a labor dispute with a local dairy farm for nearly a decade. The high court’s 25-page majority opinion written by Justice Rebecca Dallet revolved mainly around the question of whether compensation for donning and doffing, or putting on and taking off, personal protective equipment can be modified or eliminated through collective bargaining.

“Because time spent donning and doffing comprises ‘hours worked’ under [Wisconsin rules], and the law does not exempt donning and doffing from the statutory requirement that employees be paid for all hours worked, the answer is no,” Dallet wrote.

A group of nearly 230 former and current workers at Jones Dairy Farm in Fort Atkinson sued the farm in 2010, alleging it failed to pay them for time spent before and after their shifts putting on and taking off their protective gear, including safety footwear, frocks, hairnets, aprons, ear plugs and plastic bump caps. The employees estimate this changing time, when combined with time spent walking to and from their workstations, took a total of about eight and a half minutes per day.

The farm, meanwhile, argued that the workers had repeatedly put forth compensation for donning and doffing time during collective bargaining – including in 1997, 2000, 2004 and 2009 – but withdrew those proposals in exchange for base wage increases. It also argued that the de minimis doctrine applied to those tasks, suggesting the time spent on them is negligible enough that it can be disregarded for compensation.

Jefferson County Circuit Court Judge William Hue rejected the farm’s arguments in 2018, ruling the work was compensable and could not be bargained away. The farm appealed and the appellate court promptly passed the suit to the state high court.

Dallet, joined by Justices Ann Walsh Bradley, Daniel Kelly and Brian Hagedorn in the  4-3 decision, agreed with the circuit court that the time workers are required to spend donning and doffing their gear is integral to their jobs and “there is no Wisconsin statute or Department of Workforce Development regulation that expressly allows an employer to modify or eliminate compensation,” for those tasks.

While noting that federal law, namely the Fair Labor Standards Act, specifically permits bargaining over donning and doffing, Dallet concluded that federal law does not apply to the farm workers’ case because of the lack of an equivalent provision in state law.

Dallet also rejected the idea that the amount of compensation for changing time was too small to be considered. The workers sought damages calculated to be roughly $675 per year for five years, and Dallet concluded that “viewed in the aggregate it is a significant amount of compensation for tasks that the employees completed daily.”

Victor Arellano, the workers’ counsel with the Arellano & Phebus firm’s Middleton office, welcomed the high court’s ruling Thursday, saying “you cannot deny the working class the time they are required to invest on behalf of the employer.”

Pointing to the majority decision’s support from both conservative and liberal-leaning justices, Arellano applauded the court for putting aside “pro-industry versus pro-workers” divisions.

“This court has sent a message that they will continue to rule based on the law, not based on politics,” Arellano said.

Despite some bipartisan agreement, not all of the high court’s justices backed the ruling.

Justice Annette Ziegler’s 14-page dissent, joined by Chief Justice Patience Roggensack, asserted not only that donning and doffing time could absolutely be eliminated or modified through collective bargaining, but also found the majority gave “short-shrift to clearly contrary statements from four justices of this court” in addition to ignoring Wisconsin administrative codes allowing for the changing time to be bargained away, as well as high court precedent indicating the same.

Ziegler also chided the majority for dodging the question of whether the changing time was de minimis without applying the relevant doctrine.

“Thus, the majority reaches its desired result without deciding an issue squarely presented to this court,” Ziegler said.

In a separate dissent, Justice Rebecca Grassl Bradley argued that the donning and doffing time is de minimis, “particularly when coupled with the administrative difficulty in recording this extra time for payroll purposes.”

The case is not settled, however, since Dallet ultimately found the circuit court improperly ignored Jones Dairy Farms’ equitable defenses and remanded the case back to the lower court so they can be considered.

Jones Dairy Farm, represented by Bernard Bobber in the Milwaukee office of nationwide firm Olgetree, Deakins, Nash, Smoak & Stewart, responded through its counsel Thursday, saying it respected the high court’s decision but ultimately disagreed.

The farm pointed out that in a 2016 labor dispute between Hormel Foods and its workers, “four Wisconsin Supreme Court justices…said that the issue of pay for changing time can be determined through collective bargaining. But today four different justices concluded that it cannot.”

The farm nonetheless expressed pleasure at the opportunity to fully argue its common law, equitable defenses before the circuit court.

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