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Employees lose bid for lunch break pay

A poultry-plant operator must pay its employees for the time they spent putting on and taking off protective gear before and after their workday, but not before and after their lunch breaks, the 4th U.S. Circuit Court of Appeals has held.

The court’s holding overturns part of a decision then-U.S. District Judge Andre M. Davis of Baltimore rendered in a lawsuit that 280 production-line workers had filed against Mountaire Farms Inc., which has a hatchery in Queen Anne. Davis, now a judge on the 4th Circuit, had held in 2009 that the federal Fair Labor Standards Act entitled the workers to compensation for the time they spent donning and doffing their protective gear, even at lunch.

In its decision, the appellate court panel, which did not include Davis, cited what it called the “workday rule,” under which workers must be compensated from their first assigned activity to their last under the FLSA. These assignments include the donning and doffing of protective clothing before and after their shifts, the court said.

But the “workday” does not include activities related to a “bona fide meal period,” which is a break from assigned duties, the court said, citing one of its earlier rulings on the federal law.

The 4th Circuit’s decision marked a defeat not only for the workers but for the U.S. Department of Labor, which argued in a friend-of-the-court brief that lunchtime does not start until the protective equipment is off and ends just before the gear goes back on.

“Not until the completion of these work activities [of removing the gear] can it be said that the bona fide meal period has begun, irrespective of any claims by an employer that the meal break period begins before then,” the department stated. “Similarly, the employees’ bona fide meal period ends once they again are required to engage in ‘work’ activities, such as re-donning and/or washing their sanitary and protective equipment in order to return to the production line.”

Neither C. Christopher Brown, the attorney for the workers, nor James. L. Hughes, the attorney for the company, returned telephone messages Friday seeking comment.

Brown is with Brown, Goldstein & Levy LLP in Baltimore. Hughes is with Wimberly, Lawson, Steckel, Schneider & Stine PC in Atlanta.

Davis, in ruling for the workers, said they were entitled to compensation for all 17 minutes they spent each day putting on and taking off their protective gear.

But the 4th Circuit, relying on the data Davis used, reduced that figure by 6.796 minutes — the time it took workers to doff and don their gear during lunch breaks.

Thus, workers were entitled to be compensated not for 17 minutes but for 10.204 minutes per day, or 42.5 hours per year, the 4th Circuit said.

The appellate court went further, calculating that the workers, who were paid $10 per hour, are owed compensation of $425 per year going back six years, for a total of $2,550 per employee. The six years of back pay was based on the two years the workers were not paid for doffing and donning before filing suit plus the four years since their filing, during which time they have also gone unpaid.

The workers, however, will miss out on an additional $283.33 per year — or $1,699.98 over six years — as a result of the court’s ruling that they are not entitled to compensation for their lunchtime donning and doffing.

Judge Barbara Milano Keenan wrote the 4th Circuit panel’s opinion. She was joined by U.S. District Judge Irene C. Berger of Southern West Virginia, who was sitting by designation.

Judge J. Harvie Wilkinson III wrote a concurring opinion in which he chided Keenan for the precision of her minutes-per-day calculation.

“With respect to lunch-break doffing and donning, I write simply to note that the Fair Labor Standards Act does not require that every controversy over ever-smaller increments of time be litigated out to three decimal places,” Wilkinson wrote.

The litigation was brought by 280 mostly non-English-speaking Latino employees, who allege Arkansas-based Mountaire failed to credit donning and doffing time at its Millsboro, Del., plant.

Though most of the Millsboro workers live in Delaware, their attorney, Brown, said in 2009 that he brought suit in Maryland because he is familiar with the Baltimore court. That court had jurisdiction based on Mountaire’s Queen Anne facility.



Perez et al. v. Mountaire Farms Inc., 4USCA No. 95, 09-1917. Reported. Opinion by Keenan, J. Concurrence by Wilkinson, J. Filed June 7, 2011.


Are employees entitled to be paid for the time they spend doffing and donning protective gear before and after their lunch break?


No; workers are not entitled to compensation for doffing and donning related to a “bona fide meal period.”


C. Christopher Brown for Appellees; James L. Hughes for Appellant.

RecordFax # 11-0607-60