KAREN R. BAKER, Associate Justice.
Appellant, Gerber Products Company d/b/a Nestlé Infant Nutrition d/b/a Nestlé
Appellees are employed by Gerber at its baby food processing and manufacturing facility located in Fort Smith, Arkansas ("employees"). On June 6, 2012, the employees filed a class action complaint against Gerber in the Sebastian County Circuit Court.
Both parties' motions for summary judgment were initially denied. However, on November 3, 2014, a hearing was held on the cross-motions for summary judgment, and the circuit court orally announced from the bench that it was changing its earlier order in favor of the employees. On January 23, 2015, the circuit court entered a written order granting the employees' motion for partial summary judgment as to Gerber's liability for failure to pay certain overtime wages. Specifically, the circuit court found that the AMWA requires Gerber to "treat the time required by employees to complete the mandatory donning and doffing activities at issue in this lawsuit as compensable work time, notwithstanding any contrary custom or practice under a collective bargaining agreement applicable to those employees or any express agreement." Further, the circuit court found that the AMWA does not incorporate the Federal Labor Standards Act ("FLSA") 203(o) exception for
Also on January 23, 2015, the parties stipulated to the remaining issues of fact and procedures. For purposes of the calculation of damages for the period of June 6,
On August 4, 2015, the circuit court entered an order denying the employees' request for liquidated damages, reasoning that "it is not clear that [Gerber] should have known prior to this Court's ruling that the compensation should have been paid for donning and doffing activities." The circuit court granted the employees' request for prejudgment interest at a rate of 6% per annum accruing based on the amount of damages on each payday within the damages period until entry of the final judgment.
On the same date, the circuit court entered its final judgment pursuant to its January 23, 2015 order and the parties' January 23, 2015 stipulation of the remaining issues of fact and procedures. Accordingly, the total amount of damages awarded to the employees was $3,001,669.84. In addition to the 6% prejudgment interest, the employees were awarded postjudgment interest at a rate of 10% per annum. On September 1, 2015, Gerber filed its notice of appeal.
On appeal, Gerber argues that the circuit court erred in granting the employees' motion for partial summary judgment. Generally, Gerber takes issue with the circuit court's finding that the AMWA requires Gerber to treat the time required by employees to complete the mandatory donning and doffing activities as compensable work time. Specifically, Gerber argues that donning and doffing activities are noncompensable based on 29 U.S.C. § 203(o), an exception contained in the FLSA. The employees respond that Gerber's failure to treat the donning and doffing activities as compensable work time resulted in a violation of the AMWA. Further, the employees argue that the AMWA does not contain the FLSA exception, and Arkansas Code Annotated section 11-4-218(b) prevents the parties from entering into an agreement in contravention of the overtime provision of the AMWA.
On appeal, the issue is whether the mandatory donning and doffing activities constitute compensable work time pursuant to the AMWA despite contrary custom and practice under the collective-bargaining agreement.
First, we consider whether the donning and doffing activities required by Gerber constitute work for purposes of the AMWA. This is a case of first impression that turns on this court's interpretation of the AMWA.
A circuit court will grant summary judgment only when it is apparent that no genuine issues of material fact exist requiring litigation and that the moving party is entitled to judgment as a matter of law. Quarles v. Courtyard Gardens Health & Rehab., LLC, 2016 Ark. 112, 488 S.W.3d 513. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. In reviewing a grant of summary judgment, an appellate court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Id. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.
We review issues of statutory interpretation de novo. See Ryan & Co.
Turning to the relevant provisions of the AMWA, Arkansas Code Annotated section 11-4-211(a) provides that "no employer shall employ any of his or her employees for a work week longer than forty (40) hours unless the employee receives compensation for his or her employment in excess of the hours above specified at a rate not less than one and one-half (1 ½) times the regular rate of pay at which he or she is employed."
Neither the AMWA nor the FLSA expressly defines the term "work." Arkansas Code Annotated section 11-4-203(2) defines "employ" as "to suffer or to permit to work." The plain and ordinary meaning of the word "work" is defined as an "activity in which one exerts strength or faculties to do or perform." Webster's Third New International Dictionary 2634 (1993). Upon arrival, the employees are required to change into uniforms and shoes, use a lint roller on their clothing, don protective gear, wash their hands, and walk to the preshift meeting. At the completion of their shifts, the employees are required to doff their protective clothing. We hold that the donning and doffing activities at issue constitute "work" because these activities are performed pursuant to strict procedures developed by Gerber and are performed for the benefit of Gerber.
The Arkansas Department of Labor's regulations also support our decision that time spent donning and doffing constitutes work. Arkansas Administrative Code 010.14.1-108(A)(1) (WL current through April 2016) provides that "[w]ork not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe that he is continuing to work and the time is working time." Arkansas Administrative Code 010.14.1-108(A)(3)goes on to state, "In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them." Finally, Ark. Admin. Code 010.14.1-108(B)(2) provides that waiting time, while on duty, is considered worktime if the employee is unable to use the time effectively for his own purposes. Here, Gerber is accepting the benefit of the employees donning and doffing without providing proper compensation to the employees. Further, the time the employees spend performing these mandatory activities is time that the employees are unable to use for their own purposes.
Thus, Gerber's mandatory donning and doffing activities clearly constitute "work" as contemplated by the AMWA.
Having determined that donning and doffing activities are considered work under the AMWA, we must next determine whether Gerber and the Union, through the collective bargaining agreement, are permitted to agree to not compensate the employees for donning and doffing activities.
Gerber argues that we should interpret the FLSA and the AMWA consistently and urges this court to engraft 29 U.S.C. § 203(o) into the AMWA, which would result in the time spent donning and doffing being noncompensable. To support its position, Gerber cites to Department of Veterans Affairs v. Okeke, 2015 Ark. 275, 466 S.W.3d 399, for the proposition that the AMWA mirrors the FLSA. Further, the employees argue that we should not engraft an FLSA exception when the legislature clearly chose to omit the exception from the AMWA.
At the outset, we must note that Okeke merely stated that "[t]he AMWA appears to impose the same overtime requirements as the FLSA." 2015 Ark. 275, at 6, 466 S.W.3d at 403. This statement should not be taken to mean that the AMWA and the FLSA impose the exact same requirements or that the two mirror each other exactly.
The federal exception at issue is 29 U.S.C. § 203(o) of the FLSA, which carves out an exception for unionized employees:
29 U.S.C. § 203(o).
Gerber relies on Ark. Admin. Code 010.14.1-112, which states that the Arkansas Department of Labor "may rely on the interpretations of the U.S. Department of Labor and federal precedent established under the Fair Labor Standards Act in interpreting and applying the provisions of [the AMWA] ... except to the extent a different interpretation is clearly required."
The plain language of Arkansas Code Annotated section 11-4-218(b) demonstrates that a "different interpretation is clearly required." Section 11-4-218(b) states that "[a]ny agreement between the employee and the employer to work for less than minimum wages shall be no defense to the action." (Emphasis added.) "Minimum Wages" includes "overtime compensation." Arkansas Code Annotated section 11-4-218, entitled "Employee's remedies," specifically provides the following:
Ark.Code Ann. § 11-4-218(a)(1) (emphasis added).
Gerber altogether ignores this statute in its opening brief. However, in its reply brief, Gerber argues that section 11-4-218(b) does not apply to the collectively bargained labor agreement between Gerber and the Union. Gerber notes that the labor contract is not an agreement between a single employee and employer; rather, it is an agreement between an employer and a well-established and sophisticated union. Gerber also argues that the collective-bargaining agreement did not result in any of the employees being paid less than minimum wage; rather, all of the employees were paid more than double minimum wage, and the average wage under the agreement was close to triple the amount of minimum wage.
Gerber's argument that the employees were paid more than double minimum wage is of no moment. Arkansas Code Annotated section 11-4-204, entitled "Law most favorable to employees applicable-Liberal construction," states in subsection (b) that "[t]his subchapter shall be liberally construed in favor of its purposes and shall not limit any law or policy that requires payment of higher or supplemental wages or benefits."
Next, Gerber focuses on Arkansas Code Annotated section 11-4-205, entitled "Right of collective bargaining not affected": Nothing in this subchapter shall be deemed to interfere with, impede, or in any way diminish the right of employers and employees to bargain collectively through representatives of their own choosing in order to establish wages or other conditions of work. Thus, Gerber's position appears to be that because the agreement at issue is a collective-bargaining agreement between an employer and a union, the parties were free to enter into an agreement in violation of other provisions of the AMWA.
We disagree with Gerber's position. In considering all the relevant statutes together and seeking to ascertain the legislature's intent, it is clear that had the legislature intended section 11-4-205 to except collective-bargaining agreements entered into between employers and unions from the AMWA, it would have included a provision similar to the FLSA's 203(o) exception. Further, it is well settled that we will not read into a statute a provision that was not included by the General Assembly. Scoggins v. Medlock, 2011 Ark. 194, 381 S.W.3d 781 (citing Potter v. City of Tontitown, 371 Ark. 200, 264 S.W.3d 473 (2007)). Because the AMWA does not contain the FLSA's 203(o) exception, we decline to engraft this exception into the AMWA. To engraft the FLSA's 203(o) exception into the AMWA would involve the addition of words that do not appear in the text of the AMWA.
We hold that the donning and doffing activities constitute compensable work under the AMWA, despite the custom and practice under the collective-bargaining agreement. Further, we decline to engraft the FLSA's 203(o) exception into the AMWA. Accordingly, we affirm the circuit court's order granting the employees' motion for partial summary judgment.
Affirmed.
Brill, C.J., and Hart and Wood, JJ., dissent.
I respectfully dissent. As a result of the majority's decision, Arkansas will repeat the past mistakes of the federal government, and the floodgates will open to litigation at the enormous cost to businesses in Arkansas. In addition, the majority undermines the collective-bargaining process and destroys any confidence employers and employees have in the enforceability of their agreements.
The majority repeats the unfavorable history set in motion by the United States Supreme Court following its first interpretation of "work" and "workweek" under the FLSA. See Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944); Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690-91, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). The initial version of the FLSA, enacted in 1938, did not define "work" or "workweek," and the United States Supreme Court, in turn, interpreted those terms broadly. It defined "work" as "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." Tennessee Coal 321 U.S. at 598, 64 S.Ct. 698. It similarly defined "the statutory workweek" to "includ[e] all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed workplace." Anderson 328 U.S. at 690-91, 66 S.Ct. 1187. These decisions resulted in an outpouring of lawsuits at the expense of businesses. As the Supreme Court recently acknowledged,
Integrity Staffing Sols., Inc. v. Busk, ___ U.S. ___, 135 S.Ct. 513, 517, 190 L.Ed.2d 410 (2014).
Fortunately, following these decisions, Congress acted quickly and passed the Portal-to-Portal Act, which exempted employers from liability for future claims based on two specific categories: "walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform," and "activities which are preliminary to or postliminary to said principal activity or activities." 29 U.S.C. § 254(a)(1), (2). The United States Supreme Court recently held in Sandifer v. United States Steel Corp., ___ U.S. ___, 134 S.Ct. 870, 187 L.Ed.2d 729 (2014), that "changing clothes" under § 203(o) includes protective clothing worn as part of the principal activities for which workers are employed.
The majority repeats the mistakes of the past despite the fact that the AMWA's regulations specifically instruct the state's labor department to look to federal precedent under the FLSA:
Ark.Code R. § 010.14-112 (emphasis added).
The majority contends that the General Assembly's silence signals a clear intent to depart from the FLSA. However, this is a departure from precedent. In instances where a state statute was silent on an issue, this court typically looked to analogous
Similarly, other courts have looked to the FLSA for guidance when their state labor statute is silent on a particular issue. See Mitchell v. JCG Indus., 929 F.Supp.2d 827, 833 (N.D.Ill.2013) ("Where the IMWL is silent on an issue, Illinois courts (and federal courts applying Illinois law) look to analogous federal statutes — the FLSA in particular — for guidance."); Thompson v. Blessed Home Inc., 22 F.Supp.3d 542, 550 (E.D.N.C.2014) ("In interpreting the NCWHA, North Carolina courts look to the FLSA for guidance."); Kirchoff v. Wipro, Inc., 894 F.Supp.2d 1346, 1350 (W.D.Wash.2012) ("[T]he Court may look to the FLSA for guidance in interpreting Washington's Minimum Wage Act.").
Second, there is no clear evidence that the General Assembly intended the AMWA to set aside long-established contracts between employers and organized labor unions. We cannot forget that the bargaining parties here are a corporation and a union. Both are sophisticated and well-practiced negotiators. The record reflects that it was the custom and practice between Gerber and the union to exclude donning and doffing activities from paid time. During negotiations, the union requested donning and doffing pay, but later abandoned that proposal. Following negotiations, the union accepted the terms of the contract. We cannot know whether the union received higher wages or extra benefits in exchange for dropping its request for donning and doffing. Nevertheless, the employees received wage increases and other benefits as a result of the negotiations. The settled practice of excluding donning and doffing remained in place.
Significantly, the AMWA discourages interpretations of the Act that interfere with or impede collective bargaining. Ark.Code Ann. § 11-4-205. Arkansas law specifically and repeatedly provides that the right to collectively bargain is of upmost importance to the public policy of this State. Arkansas Code Annotated section 11-3-301 states, "Freedom of organized labor to bargain collectively and freedom of unorganized labor to bargain individually is declared to be the public policy of the state under Arkansas Constitution, Amendment 34." Furthermore, Arkansas Code Annotated section 11-4-205 provides, "Nothing in this subchapter shall be deemed to interfere with, impede, or in any way diminish the right of employers and employees to bargain collectively through representative of their own choosing in order to establish wages or other conditions of work." Thus, there is no need to engraft the FLSA's § 203(o) exception into the AMWA as the majority opines. The AMWA's own text demonstrates that collectively
Furthermore, the majority's statement that the plain language of the AMWA requires us to abrogate the collective-bargaining agreement between Gerber and the class employees is irrelevant since the AMWA's minimum-wage requirement has not been violated. The AMWA provides remedies for employees against only the "employer who pays any employee less than the minimum wages, including overcompensation or compensatory time off." Ark.Code Ann. § 11-4-218(a). However, it is undisputed in this case that the employees' wages were well above the required minimum wage. The parties agree that every class member earned almost three times the minimum wage. As section 11-4-218(a) and (b) have not been violated, there is no remedy available to the class members.
For this court to abrogate the collectively bargained agreements between Gerber and its employees, which have customarily and generally excluded donning and doffing from the rate of pay, and afford the employees a windfall, is unjustified, particularly when the agreements do not violate the minimum-wage requirement. For these reasons, I would reverse the circuit court's denial of Gerber's motion for summary judgment and dismiss the case.
Brill, C.J., and Hart, J., join.