Weissman v. Tyson: The Latest Developments in Donning and Doffing in Wisconsin

17 April 2014 Wisconsin Appellate Law Blog

Earlier this month, the Wisconsin Supreme Court accepted the parties’ voluntary dismissal in Weissman v. Tyson Prepared Foods, 2012AP2196, assuring the precedential status of the court of appeals’ decision. Tyson addressed the compensability under Wisconsin law of time that employees spend pre-shift and post-shift preparing for work by putting on and taking off standard personal protective gear such as gloves, safety shoes, hairnets, and coats.

Six Tyson employees filed a putative class action on behalf of themselves and their fellow employees at a Wisconsin pepperoni plant, claiming that they were entitled to be paid for time they spent “donning” and “doffing” “sanitary and protective equipment and clothing” and for time that they spent travelling about the plant property at the beginning and end of their shifts. The plaintiffs alleged the wage claim only under state law. While there has been extensive litigation across the country of such claims under the federal Fair Labor Standards Act (which we have recently written about), Tyson involved issues of first impression in the interpretation of Wis. Stat. § 109.03(1) and Wis. Admin. Code § DWD 272.12, governing wages and hours worked.

Though a number of factors could bear on this type of factual scenario (a de minimis defense, the role of collective bargaining, etc.), the issue presented here was narrow: Is the donning and doffing performed in this circumstance compensable? In other words, is the time employees spend putting on and taking off these particular items to be counted as “hours of work” for which they must be paid at least a minimum wage and which will count towards the overtime pay trigger of 40 hours of work in a week.

The circuit court granted summary judgment to Tyson before class certification. The court of appeals reversed. Though the items worn (hair nets, beard nets, frocks, gloves, vinyl sleeves, hats, safety glasses, ear plugs, and special shoes) were not extensive or unique, they were required by the employer for the safety of employees and the food products. The items were not merely an employee convenience. Thus, the time employees spent donning and doffing was compensable. However, the court of appeals indicated that a de minimis defense might apply to the circumstances presented.

Argument in the Wisconsin Supreme Court was scheduled this month, but the parties’ voluntary dismissal means that the Wisconsin Court of Appeals published opinion will stand. That decision has broad implications for employers whose employees engage in similar pre-shift or post-shift employment-related activities.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services

Insights