The traditionally conservative Fourth Circuit made two disappointing rulings, and one favorable ruling, in a donning and doffing case against a Delaware poultry processor. Perez v. Mountaire Farms, Inc., decided June 7, 2011.1
First, the court unanimously held that donning and doffing smocks, bump caps, hair nets and other gear was not excluded from working time under the Portal-to-Portal Act, but came under the “integral and indispensable” exception to the Portal-to-Portal Act created by the Supreme Court in Steiner v. Mitchell.2 The court rejected the argument that the environment in a poultry plant is different from the environment in Steiner, which involved a battery plant with lethal amounts of lead and sulfuric acid. It adopted a two-part test for deciding whether donning and doffing is “integral and indispensable.” The test is: (1) whether the donning and doffing is necessary to the principal work performed, and (2) whether it primarily benefits the employer. This formulation appears to read the word “integral” out of the Supreme Court’s Steiner holding. While “necessary” and “indispensable” mean the same thing, “integral” conveys something different—that the activity is part of the principal activity, not part of the preparation for it. The Fourth Circuit’s ruling would not necessarily apply in a unionized facility, where donning and doffing may be excluded from compensation under Section 3(o) of the FLSA. Sepulveda v. Allen Family Foods.3
The decision widens a circuit split. The Sixth Circuit reached a similar conclusion in a case involving a frozen food plant. Franklin v. Kellogg Co.4 The Second Circuit, however, held that the Steiner exception is limited to lethal working environments. Gorman v. Consolidated Edison Corp.5 The Ninth Circuit held that donning and doffing the sort of gear worn in a poultry plant is “de minimis as a matter of law.” Alvarez v. IBP.6
Second, the Court ruled (2-1) that the donning and doffing was not excluded from compensation under the de minimis doctrine. In Anderson v. Mount Clemens Pottery7 the Supreme Court held that a few minutes a day of work beyond the scheduled shift can be disregarded. The case law has generally recognized an upper limit of 10 minutes per day. Although the compensable donning and doffing in Perez was found to take 10.204 minutes per day, the majority found that it was not de minimis. Their reasons were (1) the parties’ expert witnesses were able to measure the time (although they reached different figures); (2) the time, when aggregated, became significant; and (3) the additional work was performed on a regular basis.
Third, the court rejected (2-1) the employees’ claim that donning and doffing before and after the meal break was compensable time. It found that the time was part of the meal break, not working time. The court’s treatment of that issue illustrates how much depends on luck of the draw in FLSA cases. The majority stated that the court was required to follow its earlier decision in Sepulveda v. Allen Family Foods8, which held that donning and doffing at the meal break is not working time. However, the majority stated that Sepulveda was based on an assumption rather than facts, and that if it were up to them, they would have reached a different conclusion. The majority consisted of Court of Appeals Judge Barbara Milano Keenan and District Judge Irene C. Berger, from the Southern District of West Virginia, both Obama appointees. The third member of the panel, Circuit Judge J. Harvie Wilkinson, III, a Reagan appointee, wrote the Sepulveda decision criticized by the majority. He responded that the FLSA “does not require every controversy over ever smaller increments of time be litigated out to three decimal points.” For employers not exposed to donning and doffing claims, the chief significance of the decision may be the ruling on the de minimis doctrine. Many work practices apart from donning and doffing can give rise to small amounts of overtime. When many claims for such amounts are aggregated in a class or collective action, the exposure can become substantial. Additionally, even when the exposure is relatively small, plaintiffs’ counsel are tempted to litigate over de minimis claims by the prospect of recovering attorneys’ fees. The Fourth Circuit’s ruling may encourage one of the most distasteful kinds of lawsuits—those in which the plaintiffs’ claim for attorneys’ fees exceed the amount in controversy.
1. 2011 WL 2207110.
2. 350 U.S. 247, 256 (1956).
3. 591 F.3d 209, 214 (4th Cir. 2009), cert. denied, 131 S. Ct. 187 (2010).
4. 619 F.3d 604 (6th Cir. 2010).
5. 488 F.3d 586, 593 (2d Cir. 2007).
6. 339 F.3d 894, 903-04 (9th Cir. 2003), aff’d, 546 U.S. 21 (2005).
7. 328 U.S. 680, 692 (1946).
8. 591 F.3d at 216.