4th Circuit judge denies poultry workers compensation for ‘donning and doffing’ 

Posted: 8:00 pm Sun, January 3, 2010
By Brendan Kearney
Daily Record Legal Affairs Writer

A class of 250 unionized Delaware poultry plant workers are not due wages for the time they have spent “donning and doffing” their protective gear each day, a federal appellate court in Richmond has affirmed, clarifying the issue for Maryland’s district court and adding another pro-employer decision to the national circuit split.

In a decision that affects thousands of assembly line workers in the mid-Atlantic, the 4th U.S. Circuit Court of Appeals held that putting on and taking off the gear, which includes a plastic apron and safety glasses, is “changing clothes” and thus is not necessarily compensable under the Federal Labor Standards Act.

Instead, whether the predominantly non-English-speaking Latino workforce at the Harbeson, Del., plant should be paid for the roughly 15 minutes spent donning and doffing each day is the province of negotiations between the line workers’ union and Allen Family Foods. The company had rejected the union’s proposal.

“This sort of fact-intensive determination has classically been grist for the mill of collective bargaining, and Congress ensured that employers and unions could keep it that way by enacting Section 203 (o),” Judge J. Harvie Wilkinson III wrote for the three-judge panel, referring to a 60-year-old amendment to the FLSA.

The Richmond court’s holding, which affirms Senior U.S. District Judge Marvin J. Garbis’ decision from September 2008, is consistent with a previous 11th Circuit decision from 2007, but not a 9th Circuit decision from 2003. And it bears on a similar case involving both unionized and non-unionized workers that Circuit Judge Andre M. Davis decided oppositely from Garbis in June 2008 when Davis was still sitting in Baltimore.

Mixed precedent

C. Christopher Brown, who has represented the classes in both Maryland cases, said he was so disappointed by Tuesday’s decision that, as of Friday, he hadn’t even brought himself to read it yet. Brown said he was unlucky to draw an “extremely conservative panel” and that “it was clear in oral argument from the get-go that they had no sympathy for the plaintiff workers.”

“The argument was pretty lopsided and one-way and had little to do with the merits of the case,” said the Baltimore attorney of his Oct. 28 experience in Richmond.

Brown said he has 90 days to ask the U.S. Supreme Court to consider the case. (The high court declined to hear the case from the Atlanta-based 11th Circuit and affirmed the case from the San Francisco-based 9th Circuit on other grounds.)

“What we need to do is figure out whether it’s worth shooting for certiorari,” said Brown, who has argued before the Supreme Court three times.

Eric Hemmendinger, who represents Allen Family Foods, called Wilkinson’s opinion “a terrific decision” that “does a remarkably good job of stating concisely what the [labor law] history is.” And he doesn’t think it will be subject to appellate review.

“I don’t think he has a real circuit split to point at,” Hemmendinger said of one of Brown’s arguments for why the high court should take up Sepulveda v. Allen Family Foods. “There are some district court cases that go the other way, but the Supreme Court doesn’t usually consider that when deciding whether to grant certiorari.”

Defining ‘clothes’

The Sepulveda litigation began when three Georgetown, Del., line workers sued Allen Family Foods in January 2007. Judge Garbis eventually certified the class to include potentially all 1,200 workers at the company’s Harbeson, Del., processing plant but not the workers at its Cordova or Hurlock plants in Maryland.

The Delaware workers, members of United Food & Commercial Workers Local 27, each must wear steel-toe shoes, a smock, a plastic apron, safety glasses, ear plugs, a “bump cap,” a hair net, rubber gloves, mesh sleeves and arm shields to perform such tasks as hanging, eviscerating and de-boning chickens.

Brown argued the items are not “clothes,” but Wilkinson found this interpretation “cramped” and “unpersuasive.”

“Because many work clothes are protective to some extent, the distinction urged upon us by the employees would be difficult, if not impossible, for courts to administer in a consistent and coherent manner,” the judge wrote, before also rejecting the plaintiffs’ argument about the definition of “changing.”

“The other side read ‘changing’ clothes as if it said ‘exchanging’ clothes,” Hemmendinger said. “That’s kind of ridiculous.”

One practical reason for both the company and the union to exclude donning and doffing from any hourly wage agreement is so the activity doesn’t have to be monitored, Wilkinson and Hemmendinger pointed out.

Other similar cases

Last week’s holding seems to decide the issue for union workers in the other pending Maryland case, Perez v. Mountaire Farms Inc., which Brown called “even more important than this case” and is also on appeal.

But the non-union component likely will turn on a separate issue — whether donning and doffing is a preliminary or postliminary activity excluded from FLSA compensation by the 1947 Portal-to-Portal Act — according to Hemmendinger, who was once, but is no longer, involved in the Mountaire case. That issue is “an open question in this circuit,” according to Wilkinson’s opinion.

In April, Judge Davis ruled the 250 workers at the Mountaire Farms Inc.’s Millsboro, Del., facility should be paid for 17 minutes of daily “donning and doffing” since 2004. And on July 31, Davis calculated each employee’s damages — as much as $5,207.72 — for a total of $460,000. Davis made no final ruling with regard to the unionized work force of 150 at another Mountaire plant just south of Millsboro, in light of the then-pending Sepulveda appeal.