ROBERT M. DOW, JR., District Judge.
Plaintiffs Rochell Mitchell and Audrey Veasley, individually and on behalf of all others similarly situated, brought this action against Defendants JCG Industries, Inc. ("JCG") and Koch Meat Co., Inc. ("Koch"), as a putative class action for violation of the Illinois Minimum Wage Law ("IMWL"),
Plaintiffs Rochell Mitchell and Audrey Veasley worked as poultry processors or "line workers" for JCG and Koch, two Illinois corporations that operate poultry processing plants. Plaintiff Mitchell was employed as a line worker at the poultry processing plant at 4404 W. Berteau, Chicago, between June 6, 2008 and March 20, 2011, while Plaintiff Veasley was employed as a line worker at the same plant between February 7, 2008 and August 11, 2008. Veasley and Mitchell were each paid $7.75 per hour when they were hired.
As line workers, Plaintiffs were required to don and doff the following items of clothing at the start and end of the workday: a lab jacket, a plastic apron, cut resistant gloves, protective ear plugs, plastic sleeves, guards and a hairnet. Plaintiffs were required to don those items before they reached the production line, at which point their shifts started; Plaintiffs' shifts then ended when they left the line, after which they were required to doff those items. According to Plaintiffs, it typically took approximately 10 to 15 minutes to properly don the items, while Defendants maintain that it takes approximately two minutes or less to don work-related clothing. Defendants required the employees to wear the protective equipment both to protect the product and protect the employees. Defendants forbade employees from wearing the protective equipment outside the plant, in the rest rooms, or in the cafeteria at mealtime, and employees could be disciplined for not properly wearing the protective equipment. Defendants employed a Quality Assurance Team partially to ensure that guidelines were followed.
Approximately halfway through the scheduled shift, at a predetermined times, employees took staggered thirty (30) minute meal breaks. During employees' 30-minute unpaid meal breaks, they had to doff the protective equipment and wash. Defendants did not pay employees for the
At all times during her employment, Plaintiff Veasley's employment was governed by a collective bargaining agreement dated October 8, 2007, between Chicago Joint Board, RWDSU (Union) and JCG, which was in effect from October 8, 2007 through January 15, 2011 (the "2007 CBA"). Article XVII of the 2007 CBA states:
Neither the Union nor JCG gave written notice by registered mail to the other party of the termination or modification of the 2007 CBA within sixty days of the expiration of the 2007 CBA (and thus it was automatically renewed).
Plaintiff Mitchell's employment was governed by the 2007 CBA from the start date of her employment (i.e., June 6, 2008) until January 15, 2011. For the remaining 60 days, her employment was governed by a collective bargaining agreement dated January 16, 2011, between Production Workers Union of Chicago and Vicinity Local 707 and JCG, which was and is in effect from January 16, 2011 to January 18, 2014 (the "2011 CBA" and, collectively with the 2007 CBA, the "CBAs"). The 2007 CBA states that "[e]mployees will not be compensated anytime for donning and doffing or washing outside of line time, unless the Company decides otherwise." The 2011 CBA states that "[u]nless otherwise mutually agreed, the regular work week shall be Monday through Friday from line start time to end time." The Letter of Understanding that is attached as page 27 to the 2011 CBA states: "under the language of the collective bargaining agreement and the custom or practice at the Berteau facility under the agreement, no additional minutes are to be paid to those employees for the time they spend donning and doffing gear."
On September 27, 2010, Plaintiffs filed their complaint in the Circuit Court of Cook County, Illinois, and on October 25, 2010, Defendants filed their Notice of Removal pursuant to 28 U.S.C. §§ 1331,1367 and 1441. Plaintiffs allege that they regularly worked more than forty hours per week without proper overtime compensation by working before the start of their shifts, through unpaid meal breaks, and after their scheduled shifts.
Summary judgment is proper if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). To avoid summary judgment, the opposing party must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (internal quotation marks and citation omitted). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505. The
Plaintiffs seek donning and doffing compensation and bring Count I as a putative class action under the IMWL and Count II as an individual claim under the federal FLSA. Plaintiffs also claim that they are entitled to payment for the walking time between the clothes-changing area and their work area, whether or not donning and doffing is found to be compensable, and that § 203(o) does not apply to donning and doffing at the start and end of meal breaks. Defendants maintain that both the IMWL and the FLSA permit Defendants and their employees to agree to exclude time for donning and doffing through the collective bargaining process. The Court addresses each contention in turn.
In Count I of the complaint, Plaintiffs allege a violation of the IMWL,
As various courts in this District have acknowledged, the IMWL is silent with respect to the issue of whether donning or doffing time is compensable. Compare 820 ILCS 105/1 et seq (silent with respect to clothes changing) with Wis. Admin. Code § DWD 272.12(2)(e)(1)(c) ("Among the activities included as an integral part of the principal activity are those closely related activities which are indispensable to its performance. If an employee * * * cannot perform their principal activities without putting on certain clothes, changing clothes on the employer's premises at the beginning and end of the workday would be an integral part of the employee's principal activity."). Given this statutory silence, courts must decide whether the Minimum Wage Law Act compels compensation for time spent donning and doffing clothing. Courts that have considered the issue have concluded that the statute does not require such compensation. See Curry v. Kraft Foods Global, Inc., 2012 WL 104626, at *4-7 (N.D.Ill. Jan. 12, 2012) (holding that "longstanding custom of non-compensation for donning and doffing between the Plaintiffs and Kraft makes such pay unrecoverable"); Whitmore v. Kraft Foods Global, Inc., 798 F.Supp.2d 917 (N.D.Ill.2011) (noting that it is for the Illinois Supreme Court to address the issue of the scope of the statute and finding that the Minimum Wage Law "does not explicitly mention doffing and donning anywhere. Nor are there, as far as this Court is aware, any Illinois cases that hold that doffing and donning must be compensated..."); Porter et al. v. Kraft Foods Global, Inc., Case No. 10 L 44, Order on Defendant's Motion for Summary Judgment (Circuit Court of the Sixth Judicial Circuit, Champaign County, IL July 18, 2011) ("The Court find that, as a matter of law, the time spent donning and/or doffing is de minimis and therefore not compensable, and further that such time is also preliminary or subsequent to principle activities and therefore not compensable on this basis as well."); see also Mitchell v. JCG Indus., 792 F.Supp.2d 1005, 1010 (N.D.Ill.2011) ("The parties have not presented, nor has the court found, a single case holding Illinois law requires time spent donning and doffing to be included in hours worked or that a collective bargaining agreement may not exclude donning and doffing from hours worked under the Minimum Wage Law. Instead, legal authority supports just the opposite conclusion * * * [U]nlike Wisconsin law, Illinois wage and hour law does not require the calculation of donning and doffing time.") (citing Carletto v. Quantum Foods, 2006 WL 2018250, *6 (Ill.App.Ct.2006)). Defendants supply an additional case from the Circuit Court of Champaign County that stands for the proposition that donning and doffing time is non-compensable. In short, the statute fails to mention donning or doffing time, no court has held that this legislative silence implies that there is a right to compensation for donning or doffing time, and Plaintiffs have not identified any cases holding that the IMWL requires an employer to compensate employees for time spent donning and doffing. Therefore, there is an absence of authority under the Minimum Wage Law Act, standing alone, to definitively resolve this matter. See Curry, 2012 WL 104626 at *3.
Plaintiffs cite to an Illinois Department of Labor regulation that states that "hours worked" means "all the time an employee is required to be on duty, or on
Where the IMWL is silent on an issue, Illinois courts (and federal courts applying Illinois law) look to analogous federal labor statutes — the FLSA in particular — for guidance. See Kerbes v. Raceway Assocs., LLC, 356 Ill.Dec. 476, 961 N.E.2d 865, 870-71 (Ill.App.Ct.2011) ("[I]n light of their substantial similarities, provisions of the Fair Labor Standards Act and interpretations of that legislation can be considered in applying the Minimum Wage Law * * * * In light of the paucity of authority directly considering [the relevant section] of the Minimum Wage Law and its implementing regulations, we will similarly consider the Fair Labor Standards Act, its implementing regulations, and relevant interpretive case law."); Lewis v. Giordano's Enters., 397 Ill.App.3d 581, 336 Ill.Dec. 884, 921 N.E.2d 740, 745-46 (2009) ("When, as in this case, there is an absence of Illinois case law interpreting an Illinois wage statute, a court may look for guidance to federal cases interpreting an analogous federal statute, namely the Fair Labor Standards Act * * * [F]ederal cases interpreting the Fair Labor Standards Act * * * are persuasive authority and can provide guidance in interpreting issues under the Wage Law and the Wage Payment Act"); Bernardi v. Village of North Pekin, 135 Ill.App.3d 589, 90 Ill.Dec. 394, 482 N.E.2d 101, 102 (1985) ("[I]n the absence of Illinois decisions dealing with a particular labor law issue, federal decisions dealing with a substantially similar law, while not controlling, may be helpful and relevant."); see also Urnikis — Negro v. Am. Family Prop. Servs., 616 F.3d 665, 672 n. 3 (7th Cir.2010) ("* * * the Illinois Minimum Wage law, 820 ILCS 105/4a(1), is parallel to * * * the Fair Labor Standards Act, and Illinois courts apply the same principles * * * to the state provisions."); Turner v. The Saloon, Ltd., 595 F.3d 679, 690 n. 7 (7th Cir.2010) ("Because the protections of the Illinois Wage Payment and Collection Act are coextensive with those of the Fair Labor Standards Act, our analysis of [plaintiff's] claim applies equally to his Illinois Wage Payment Act claim.") (internal citations omitted); Villareal v. El Chile, Inc., 776 F.Supp.2d 778, 784 (N.D.Ill.2011) ("The Fair Labor Standards Act is relevant to plaintiffs' Minimum Wage Law claims because the Minimum Wage Law parallels the Fair Labor Standards Act, and the same analysis generally applies to both statutes * * * [C]ourts have recognized that federal decisions interpreting the Fair Labor Standards Act also apply to claims asserted under the Minimum Wage
The default rule under the FLSA is that donning and doffing time is compensable as time worked. However, § 203(o) allows for management and the union to enter into a collective bargaining agreement that excludes from "Hours Worked" any time spent changing clothes. See 29 U.S.C. § 203(o).
Plaintiff contends that § 203(o) should not inform the Court's IMWL interpretation because § 203(o) is "restricted to Sections 206 and 207 of the FLSA," citing the following quote from Spoerle v. Kraft Foods Global, Inc., 614 F.3d 427, 429 (7th Cir.2010):
Unlike the IMWL — which is silent on the issue — the Wisconsin minimum wage law at issue in Spoerle expressly required employees to be compensated for donning and doffing time. 614 F.3d at 429. Thus, in ruling that § 203(o) did not permit the parties to exclude donning and doffing time in their CBA, the Spoerle court was making the point that § 203(o) did not allow the parties to a CBA to override Wisconsin's minimum wage law, which contained an express, higher standard. The Spoerle court did not hold that, where a state law is silent on an issue, courts may not use § 203(o) for interpretive guidance.
There is no dispute that Plaintiffs' employment relationship with Defendants was governed by one of two CBAs. There also is no dispute that the parties, through the collective bargaining process, agreed to exclude donning and doffing from compensability.
The FLSA analysis contained above applies even more directly to Count II of Plaintiffs' complaint. As previously set forth, the FLSA explicitly provides that unionized employees and employers may agree to exclude donning and doffing, and numerous federal courts have enforced such provisions. See, e.g., Salazar v. Butterball, LLC, 644 F.3d 1130, 1141 (10th Cir.2011) (customs and practices under a CBA established that donning and doffing was not compensable under the FLSA); Anderson v. Cagle's, Inc., 488 F.3d 945, 958-59 (11th Cir.2007) (same); Curry, 2012 WL 104626, at *6. Thus, summary judgment is appropriate on Count II as well.
Plaintiffs' response brief asserts that Plaintiffs should have been compensated for washing unidentified "instruments" after the end of their scheduled shifts. Plaintiffs' claim is not in their complaint, and Plaintiffs are not allowed to amend the complaint in a brief — particularly in response to a motion for summary judgment. See Pritchard v. Rainfair, Inc., 945 F.2d 185, 191 (7th Cir.1991) (questioned on other grounds). Moreover, neither Plaintiff has submitted an affidavit attesting that she actually washed any instruments after her shift ended and in fact Defendants have submitted an affidavit attesting that employees other than line workers wash any instruments used.
Plaintiffs also maintain that even if donning and doffing is not compensable,
Plaintiffs attempt to circumvent Sandifer by arguing that, while the donning and doffing at issue in Sandifer did not meet the definition of "principal activity" under § 254(a), the donning and doffing at issue in this case does. According to Plaintiffs, the distinction between this case and Sandifer lies in the purpose of the work clothes. Plaintiffs maintain that the clothes in Sandifer were "personal protective equipment" benefitting the employees whereas here, the clothes were required by law to protect food from contamination and benefitted the employer, such that donning and doffing in this case is a principal activity "essential and integral" to poultry processing and triggers the beginning and end of each workday. Plaintiffs also contend that, regardless of whether the 2007 and 2011 CBAs contain a § 203(o) exclusion, § 203(o) does not, and cannot, modify what activities are "principal activities" under § 254(a). Both of these arguments ignore the core holding of Sandifer.
In Sandifer, the Seventh Circuit analyzed the interplay between § 203(o) and § 254(a) and held that — regardless of the purpose of the clothes — clothes-changing activities properly excluded from compensation in a CBA pursuant to § 203(o) cannot be principal activities capable of starting the workday:
Plaintiffs also assert meal-break donning and doffing claims. However, the Court's reading of the Seventh Circuit's decision in Sandifer requires judgment on Plaintiffs' meal-break claims as well. First, Sandifer's articulation of legislative intent demonstrates that, despite § 203(o)'s reference to the "beginning or end of each workday," Congress intended for it to apply to meal-break donning and doffing claims, and a contrary interpretation would thwart the overall statutory scheme and lead to absurd results. Plaintiffs contend that the congressional intent behind the FLSA is "to protect workers" and that construing § 203(o) to apply to meal breaks would thwart that intent. That argument oversimplifies the congressional intent behind the FLSA. In Sandifer, the Seventh Circuit stated:
Sandifer, 678 F.3d at 597-98. Clearly, the Seventh Circuit reads Congress's intent in enacting (and amending) the FLSA as accommodating both the protection of workers and the preservation of the usefulness of collective bargaining.
Second, Sandifer's
Under Section 785.19, meal periods are not considered compensable work if they are "bona fide," and the Seventh Circuit, like most federal circuits, has adopted a "predominant benefit" test to determine whether they are. See Barefield v. Village of Winnetka, 81 F.3d 704, 710 (7th Cir. 1996). Under that test, a meal period is not work time if the employees' time is spent predominantly for their benefit. Id. A recent district court case from Louisiana is both on-point and instructive. Applying the predominant-benefit test, the court granted summary judgment on the plaintiffs' meal-time FLSA claims, holding:
Isreal v. Raeford Farms of Louisiana, LLC, 784 F.Supp.2d 653 (W.D.La.2011). The plaintiffs in Isreal, like Plaintiffs here, did not contend that they were required to process poultry during their meal breaks. Thus, the court concluded that the plaintiffs were completely relieved from duty during their meal period and the time was used "predominantly for their benefit." Although there was "minimal benefit to the employer by virtue of the employees donning their gear at the end of the period," summary judgment was appropriate. Sepulveda reached the same conclusion, as a matter of law. See also Romero v. Mountaire Farms, Inc., 796 F.Supp.2d 700 (E.D.N.C.2011) (dismissing meal-time donning and doffing claims brought by poultry processors).
The reasoning in these cases is sound, and at least implicitly has been adopted by the Seventh Circuit in Sandifer. Plaintiffs have failed to address any of these cases or the Seventh Circuit's implicit adoption of them. Therefore, the Court concludes that Plaintiffs' meal period was a non-compensable bona fide meal period notwithstanding the donning and doffing.
For the reasons set forth above, the Court grants Defendants' motion for partial summary judgment [57] and will enter judgment on the donning and doffing claims asserted in Counts I and II. Plaintiffs' amended motion for class certification [80], which seeks a class relating only to donning and doffing claims, is denied as moot. The Court will set this matter for a status conference to discuss the issues that remain pending.
29 U.S.C. § 203(o). Section 203(o) thus applies when (1) there is a bona fide CBA between the parties; (2) that excludes compensation for time spent "changing clothes"; (3) either (a) by "its express terms" or (b) by "custom or practice."