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

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.