Wisconsin Employers Must Pay Employees for Donning and Doffing PPE

Under Wisconsin’s wage law, employers can’t use collective bargaining to modify or eliminate their duty to pay employees for the time they spend donning and doffing personal protective equipment (PPE), the state supreme court ruled earlier this year in Piper v. Jones Dairy Farm. The decision changes the collective bargaining landscape in the state, particularly because the Fair Labor Standards Act (FLSA) expressly allows for collective bargaining over compensation for time spent donning and doffing. It’s critical for Wisconsin employers to understand the ruling’s implications to insulate themselves from liability.

Background

Jones Dairy Farm (JDF) is a food production facility, and its employees are required to wear PPE. They must don the required gear at the beginning of their shifts and doff it at the end. Historically, JDF employees’ wages were determined by a collective bargaining agreement (CBA) between the company and the United Food and Commercial Workers International Union, Local 538.

The 1979 CBA stated employees would be compensated for donning and doffing PPE. During negotiations in 1982, the parties stipulated that the daily credit for time spent donning and doffing would be reduced from 12 to 6 minutes. In 1985, the union agreed to eliminate the provision altogether.

In 1994, the union proposed that JDF once again pay employees for 12 minutes of donning and doffing time. At some point during the negotiations, it withdrew the proposal.

During the 1997 negotiations, the union again proposed compensation for 12 minutes of donning and doffing time. It once again withdrew the proposal during the bargaining process. A similar course of events occurred in 2000, 2004, and 2009.

In 2010, a group of JDF employees filed suit seeking unpaid wages for time spent at the beginning and end of their shifts donning and doffing PPE and walking to and from their workstations. JDF argued it wasn’t required to pay them for the time because they bargained over their right to it by withdrawing the proposals for compensation during the collective bargaining process.

The trial court determined the time employees spent donning and doffing was compensable, and Wisconsin law allows no exception for collective bargaining to modify or eliminate the requirement. JDF appealed the decision.

Wisconsin Supreme Court’s Decision

Wisconsin’s Department of Workforce Development (DWD) is responsible for adopting regulations related to the state’s wage and labor laws. Under Section DWD 272.12 of the Wisconsin Administrative Code, employees must be paid for all time spent in “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer’s business.” Compensable time is defined as “the time on any particular workday at which such employee commences their principal activity or activities.” The term “principal activity” includes all activities that are “an integral part of the principal activity.”

Using the foregoing definitions, the court first needed to determine whether the time JDF employees spent donning and doffing PPE is compensable. In making its determination, the court relied on the Wisconsin Court of Appeals’ decision in Weissman v. Tyson Prepared Foods, Inc., and its own decision in United Food & Commercial Workers Union, Local 1473 v. Hormel Foods Corp.

In Tyson Foods, the court of appeals decided donning and doffing PPE within the prepared food industry was an “integral part of a principal activity” and therefore compensable. In Hormel Foods Corp., the supreme court adopted the reasoning in Tyson Foods and concluded that donning and doffing PPE at the beginning and end of the day was compensable because it was an integral part of the principal activity of food production.

Because JDF employees’ PPE was similar to the gear in Tyson Foods and Hormel Foods Corp., and their activities also occurred within the food production industry, the court concluded their time was compensable because the donning and doffing was an “integral part of a principal activity.”

The court went on to determine whether compensation for time spent donning and doffing could be modified or eliminated through collective bargaining. State statutes prevent employers from contracting out of their legal obligation to pay employees for all compensable time. Plus, no state statute or regulation allows them to modify or eliminate pay for time spent donning and doffing PPE.

In contrast, the FLSA expressly permits collective bargaining over compensation for time spent donning and doffing. Even though Wisconsin’s wage law is modeled after the FLSA, it contains no provision allowing for collective bargaining over compensation for time spent donning and doffing. Accordingly, the court concluded the obligation can’t be modified or eliminated through collective bargaining. Piper v. Jones Dairy Farm, 2020 WI 28, 390 Wis. 2d 762, 940 N.W.2d 701.

COVID-19 Ratchets Up PPE Use

The court issued the Piper v. Jones Dairy Farm decision at an interesting time. During the ongoing global pandemic, Wisconsin and many other states have implemented mask mandates. As a result, many additional employees have found themselves donning masks and other protective gear, such as gloves, at the beginning of the workday and doffing them at the end. Given the court’s decision that time spent donning and doffing PPE must be paid, many Wisconsin employers may be left wondering whether employee time spent donning and doffing limited protective gear is compensable.

Wisconsin law appears to recognize the doctrine of de minimis non curat lex, which means, “the law does not govern trifles.” Under the de minimis doctrine, you can disregard otherwise compensable work when the matter at issue concerns only a few seconds or minutes of work beyond the scheduled working hours.

The U.S. Supreme Court has reasoned that a few seconds or minutes may be dismissed as de minimis because such split-second absurdities aren’t justified by the actualities of working conditions or by the policy underlying the FLSA. To determine whether otherwise compensable time is de minimis, courts consider:

• The practical difficulty of recording the additional time;
• The size of the aggregate claim; and
• Whether the work is performed on a daily basis.

Although many Wisconsin employees are now required to don and doff protective gear on a daily basis because of the mask mandate, the acts take only a matter of seconds to perform at the beginning and end of each shift. The short amounts pose practical difficulties for recording the time and would result in an aggregate claim that is relatively small. For those reasons (and consistent with the court’s decision in Piper v. Jones Dairy Farm), employee time spent donning and doffing masks and gloves would likely be considered de minimis and not compensable.

Bottom Line

The Piper v. Jones Dairy Farm ruling prevents Wisconsin employers from using collective bargaining to modify or eliminate compensable time for donning and doffing PPE. Conversely, the FLSA expressly allows collective bargaining over pay for time spent donning and doffing.

If collective bargaining is used to modify or eliminate compensation for time spent donning and doffing PPE, Wisconsin employees won’t have a claim under the FLSA. After Piper v. Jones Dairy Farm, however, they may have a claim under the state wage law. Therefore, to insulate yourself from liability, you should pay them for time spent donning and doffing the gear.

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.