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April 2, 2014
  Mitchell v. JCG Industries - Seventh Circuit
Headline: Poultry plant workers not paid for lunch time spent changing out of and into sanitary gear

Area of Law: Employment

Issue(s) Presented: Whether time spent changing clothing before and after a half-hour lunch break is worktime and must be compensated.

Brief Summary:

The plaintiffs are line worker employees at a Chicago poultry processing plant owned by the defendant. Sanitation regulations require that the plaintiffs wear a significant amount of sanitary gear. The plaintiffs alleged that the time spent removing and reapplying sanitary gear is worktime and must be compensated under both federal and state law. The plaintiffs argued that 10 to 15 minutes of their 30-minute lunch break is spent removing and reapplying sanitary gear, while the defendant argued the process requires only 2 to 3 minutes. In the majority opinion, authored by Judge Posner, the court held that time spent "donning and doffing" a few items of clothes or washing is non-compensable under existing case law. Judge Posner also wrote that some of the judges conducted an experiment after ordering the sanitary gear to confirm "the common sense intuition that donning and doffing a few simple pieces of clothing do not eat up half the lunch break."

Extended Summary:

The plaintiffs stand next to a conveyor belt and perform a variety of tasks related to poultry processing, including deboning, evisceration, and cleaning of poultry carcasses. Sanitation regulations require that the plaintiffs wear a sterilized jacket, plastic apron, cut-resistant gloves, plastic sleeves, earplugs, and hairnets while working on the line. The plaintiffs are required to remove the sanitary gear at the start of their half-hour lunch break and put it back on before returning to work. This time is taken out of their lunch break, rather than from the four-hour shifts that precede and follow it. The plaintiffs argued that they spend 10 to 15 minutes of their break time removing and reapplying sanitary gear, while the defendant argued the process requires only 2 to 3 minutes. The plaintiffs alleged that the time spent removing and reapplying sanitary gear is worktime and must be compensated both under the Fair Labor Standards Act and the Illinois Minimum Wage Law.

The Fair Labor Standards Act, 29 U.S.C. § 203(o), states that in "the hour for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday..." Judge Posner, writing for the majority, explained that the term "workday" must also encompass workers who work night shifts and he quoted Webster's Dictionary to define "workday" as "the period of time in a day during which work is performed." Judge Posner characterized the plaintiffs' eight-hour worktime as two four-hour workdays in an eight-and-a-half-hour period. Therefore, the plaintiffs' changing time before and after lunch breaks falls under § 203(o) and is non-compensable worktime. To find otherwise, argued Judge Posner, would mean that the standard eight-hour workday is actually an eight-hour workday plus some additional minutes for which the employer must pay overtime.

Judge Posner pointed out that the relevant collective bargaining agreement does not require compensation for time spent removing and reapplying sanitary gear. Judge Posner surmised that the union negotiated for compensation in exchange for this concession and that the current system is attractive to both parties because it avoids having to calculate how much time each employee takes changing. Judge Posner characterized the plaintiffs in this case as "trying to upend the deal struck by their own union."

One of the judges identified the supplier of the sanitary gear and purchased a set to conduct an experiment to determine the time required to remove and reapply the sanitary gear. Judge Posner explained that three members of the court staff "donned/doffed it as they would do if they were workers at the plant," and that they videotaped the ordeal to verify the time spent. The "actors" required an average of 95 seconds to put on the sanitary gear and an average of 15 seconds to remove it, or less than two minutes in total. Judge Posner stated that the intention of the experiment was to satisfy curiosity and did not create actual evidence in the case, though it confirmed his hunch that "donning and doffing a few simple pieces of clothing and equipment do not eat up half the lunch break." As alternative grounds to support the majority's decision, Judge Posner also cited the familiar legal doctrine de minimis non curat lex - the law does not care about trifles.

In her dissent, Chief Judge Wood argued that the characterization of the plaintiffs' workday as two four-hour workdays is incompatible with a plain reading of § 203(o). Rather than break the workday into two four-hour "days," or perhaps even smaller units, Chief Judge Wood argued that the most straightforward reading of the statute shows that the plaintiffs remove and reapply their sanitary gear in the middle of one continuous workday. Chief Judge Wood agreed with the majority that a union could bargain about compensation relating to removing and reapplying sanitary gear at the beginning or end of a full workday, but she argued that the plain language of § 203(o) does not apply to mid-day breaks. Therefore, Chief Judge Wood stated that the plaintiffs are presumptively entitled to compensation for their time spent during their lunch breaks removing and reapplying sanitary gear.

Chief Judge Wood expressed shock that judges of an appellate court would conduct an experiment like the one Judge Posner detailed in his opinion as a means to resolve a dispute. Even if the experiment is not considered actual evidence, Chief Judge Wood indicated that relying on an experiment of this kind to resolve a dispute in the slightest way is impermissible under Federal Rule of Civil Procedure 56. Chief Judge Wood also pointed out that the plaintiffs must remove and reapply the sanitary gear in an isolated room to prevent contaminating the raw poultry and that going to and from this area adds time beyond simply changing clothes. Similarly, the plaintiffs stated they must wash and stow tools in addition to removing and reapplying sanitation gear.

Chief Judge Wood also argued that disputes about the time consumed and the effort required for the plaintiffs to change and wash up are material issues that should have prevented the district court from ruling in the defendant's favor on a pretrial summary judgment motion. Whereas the district court and the majority's opinion discredited the claim that 10 to 15 minutes are required to change and clean up, Chief Judge Wood viewed the claim as believable and cited studies, standards, and news reports about what can go awry when sanitation standards are not rigidly followed. "It is essential for the health of the worker, her fellow workers, and the consumers who will consume the poultry products that a person who has been steeped in raw poultry viscera for hours wash herself off before eating," stated Chief Judge Wood. By not crediting the plaintiffs' allegations, argued Chief Judge Wood, the majority opinion erred, particularly if it was influenced by an in-chambers experiment with court staff.

Panel: Chief Judge Wood, Judge Posner, Judge Kanne

Argument Date: January 7, 2014

Date of Issued Opinion: March 18, 2014

Docket Number: No. 13-2115

Decided: Affirmed

Case Alert Author: Bryan Bach

Author of Opinion: Judge Posner (majority), Chief Judge Wood (dissenting).

    Posted By: Bryan Bach @ 04/02/2014 04:48 PM     7th Circuit     Comments (0)  

December 7, 2012
  John Doe v. Elmbrook School District - 7th Circuit
Headline: School District Violated First Amendment in Holding Graduation in Church

Area of Law: Civil Rights

Issue(s) Presented: Does a public school violate the First Amendment by holding its graduation ceremony at a church?

Brief Summary: A public school district rented a local church to use for high school graduation ceremonies between 2000 and 2009. Several parents, students, and relatives of the school district of different religious beliefs sued, saying that the school district's use of the church for the graduation ceremonies was a religious endorsement by a governmental body, and thus violated of the First Amendment Establishment Clause. The en banc Seventh Circuit ruled that the school district's use of the space amounted to an unconstitutional governmental endorsement of religion.

The full opinion may be viewed here:

Argument (if known): 2/9/2012

Date of Issued Opinion: 7/23/2012

Docket Number: 10-2922

Decided: Reversed

Counsel (if known): Alexander J. Luchenitser, Attorney, Americans United for Separation of Church and State, Washington, DC, for Plaintiffs - Appellants.

Lori M. Lubinsky, Attorney, Axley Brynelson, Madison, WI, for Defendant - Appellee.

Author of Opinion: Judge Flaum

Edited: 01/03/2013 at 12:23 PM by Media Alerts Moderator

    Posted By: Brian Graupner @ 12/07/2012 12:00 PM     7th Circuit     Comments (0)  

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