A few weeks ago on Twitter, I remarked on Mitchell v. JCG Industries, a case from the Seventh Circuit penned by Judge Richard Posner:
Worked OK for #employer here, but scary precedent for all if judges do own demos rather than rely on record #HR #FLSA http://bit.ly/1j6RB5H
140 characters do not do this decision justice, though. Reading it reminded me of another case we had argued before a panel with Judge Posner and Judge Wood during my time at the Social Security Administration. I’ll get back to that in part two of this post.
In Mitchell, over a dissent from Judge Wood, the Seventh Circuit affirmed a district court’s decision dismissing an FLSA and Illinois Minimum Wage Law claim where unionized poultry processing plant workers alleged they had not been compensated for time spent donning and doffing protective and sanitary clothing at the start and end of their meal periods. While the end result was a win for employers, the opinion itself opened to the door to more questions.
As my colleague Mark Wilkinson explained after the Supreme Court’s Sandifer decision in January 2014, the U.S. Department of Labor’s (DOL) regulations have long required employers to pay employees for time spent changing into protective gear and equipment, as well as the time spent taking it off, if that gear is required to perform the job. But under Section 203(o) of the FLSA, employers do not have to pay employees for time spent "changing clothes or washing at the beginning or end of each workday" if a "bona fide collective-bargaining agreement" excludes that time as compensable work time. Unlike Sandifer, the Mitchell case did not involve a question about whether the “clothes” at issue fell within the meaning of Section 203(o). Although the regulations provide employers and employees the opportunity to collectively bargain a different result, the CBA at issue in this case did not require the employer to compensate employees for donning and doffing.
The Mitchell plaintiffs were employees who worked eight hour shifts but were required to wash their hands before and after handling unprocessed chicken and who had to don and doff their protective clothing and gear both before and after their lunch breaks. The company took the time the workers spent washing and changing out of their uncompensated meal breaks rather than paying it as part of their shift.
The workers presented two theories, the first of which is the subject of today’s post. Rather unconventionally, the plaintiffs claimed that the time they spent donning and doffing was compensable because Section 203(o) only excludes from compensation time spent “at the beginning or end of each workday…by the express terms of or by custom or practice under a bona fide collective-bargaining agreement.” The workers argued that changing clothes at the beginning and end of the meal period was not the same as changing them “at the beginning or end of each workday.” Therefore, the workers contended that the exclusion in Section 3(o) would not apply at all.
A more conventional approach would have been to argue that the meal period was not a “bona fide” unpaid break (i.e., at least 30 minutes) on account of the amount of work the company required workers to engage in during that break. Judge Posner found this tactical decision implied “that the amount of time consumed in changing is indeed slight.” The plaintiffs’ litigation strategy shows the risk that advancing an unconventional theory by itself presents.
Writing for the majority, Judge Posner found that “the identical considerations attend payment” for clothes changing time at meal periods as at the beginning or end of the workday. Further, he observed that meal periods did not have to be provided at all in the union setting, since that issue was left to collective bargaining. Judge Posner then concluded that the inclusion of a meal period meant that workers were “in effect working two four-hour workdays in an eight-and-a-half hour period.” So how did he reach that conclusion?
Judge Posner reasoned that since “workday” could also include “worknight” (a word he created to describe workers who worked second or third shift), “it may also include four-hour shifts separated by meal breaks.” This reasoning certainly differs from the conventional understanding of “workday” in 29 C.F.R. § 790.6(b). That DOL regulation defines “workday” to mean “in general, the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” Apparently seizing on the phrase ”in general,” Judge Posner observed that Section 203(o) of the Act does not mention meal breaks at all and “does not consider the effect they may have on a practical definition of ‘workday’,” thereby justifying the multiple “workday” per day definition.
This is a novel construct of the FLSA, at least from the standpoint of the DOL, which has typically strictly construed the concept of a “continuous workday.” The opinion did not address another potentially conflicting provision of Illinois state law, the One Day Rest in Seven Act. 820 ILCS 140/3. This Illinois law, unlike the Minimum Wage Law the majority examined in its opinion, provides a meal period for all employees “who are to work for 7 1/2 continuous hours or longer,” which conflicts with the “workday” definition used by the court. If the court decided not to apply the continuous workday definition from this section because of its carve out for collective bargaining agreements, or if the case was meant to apply only to those employees represented by a CBA, the opinion was silent on that matter. Without any such caveats, application of the Court’s “workday” definition could be viewed as making the Illinois statute superfluous, since any worker with the mandatory meal period would not be working 7 ½ continuous hours.
Judge Diane Wood, in dissent, also observed that dividing the workday into two four-hour shifts was incompatible with the “continuous workday” concept in the DOL’s regulations and criticized the majority for rejecting the DOL’s interpretation of the FLSA without going through the “normal analysis” to justify disregarding that interpretation. Because changing clothes at the meal period is part of the continuous workday, Judge Wood reasoned, unions “cannot bargain away worker compensation for mid-day breaks.”
Insights for Employers and Practitioners
Perhaps the plaintiffs were too clever by asserting a novel approach to their claim. Unconventional litigation strategies can lead to unconventional results. As the classic SNL skit goes, sometimes a banana is just a banana. From a litigation standpoint, the employer properly approached this case as what it was: a de minimis donning and doffing matter that did not transform the bona fide meal period. Interestingly, the novel definition of “workday” was far from the strangest part of the opinion. I’ll save that for part two tomorrow, along with some other insights about what the employer could have done better in this situation.