ON CERTIFICATION FROM THE COURT OF APPEALS

SHIRLEY S. ABRAHAMSON, J.

¶ 1 This is an appeal from a judgment and order of the circuit court for Rock County, Michael R. Fitzpatrick, Judge, in favor of United Food & Commercial Workers Union, Local 1473 (and various individuals1), the plaintiffs, against Hormel Foods Corporation, the defendant. The court of appeals certified the appeal to this court pursuant to Wis. Stat. § 809.61 (2013-14).2

¶ 2 This is a "donning and doffing" wage and hour case. Employees seek compensation for time spent putting on ("donning") and taking off ("doffing") company-required clothing and equipment before and after shifts at Hormel's canning plant located in Beloit, Wisconsin.

¶ 3 The Union filed a class action on behalf of a class of current and former employees in Hormel's plant, alleging that Hormel violated Wisconsin wage and hour laws by failing to pay the employees for time spent at the plant putting on and taking off the required clothing and equipment. Because the time spent putting on and taking off the required clothing and equipment is not included in the employees' compensation, the Union asserts that the employees are working more than 40 hours per week without being paid overtime.

¶ 4 The certification presents two questions:

¶ 5 After a bench trial, the circuit court issued a comprehensive decision holding in favor of the Union and requiring Hormel to compensate its employees for time spent donning and doffing the required clothing and equipment at the plant at the beginning and end of the day and during unpaid meal periods (for the one percent of employees who left the plant during their meal periods). The circuit court further held, "Hormel has failed to carry its burden to show the applicability of the de minimis doctrine, and, therefore, that doctrine is not controlling (assuming it exists at all in Wisconsin law)."

¶ 6 Based on these conclusions, the circuit court awarded the class monetary damages of $195,087.30 broken down as follows: (1) $180,087.30 in unpaid wages for 5.7 minutes per day spent donning and doffing the required clothing and equipment; and (2) pursuant to a stipulation of the parties, $15,000 in damages for unpaid meal periods.

¶ 7 We conclude:

¶ 8 We also briefly address whether the time spent donning and doffing Hormel's required clothing and equipment during meal periods is considered compensable work time.

¶ 9 On appeal Hormel argues that the Tyson Foods case was wrongly decided and "puts state law at odds with federal authority, namely, with the U.S. Supreme Court's holding" in a recent decision, Integrity Staffing Solutions, Inc. v. Busk, ___ U.S. ___, 135 S.Ct. 513, 190 L.Ed.2d 410 (2014). As a result, Hormel asks us to overturn Tyson Foods. We conclude that the discussion in Tyson Foods relating to compensating its employees for time spent donning and doffing the required clothing and equipment at the plant at the beginning and end of the day does not contravene Integrity Staffing.

I

¶ 10 The parties stipulated to many facts, and the circuit court also made numerous findings of fact following a bench trial. None of the circuit court's findings of fact are clearly erroneous. Here are the relevant facts.

¶ 11 The class consists of approximately 330 persons who are or were hourly employees of Hormel at the Beloit canning facility. We will refer to the class members as "the employees."

¶ 12 Hormel is a multi-national food company incorporated in Delaware and headquartered in Austin, Minnesota. The Union agreed that Hormel is a fine employer with a quality record and a history of producing good, safe food for customers around the world.

¶ 13 Hormel's Beloit canning facility prepares, cooks, cans, and ships a variety of "shelf stable" products including Hormel Chili, Mary Kitchen Hash, and Chi-Chi's Salsa, primarily for sale to consumers in retail stores. A "shelf stable" product can be stored almost indefinitely and without refrigeration.

¶ 14 The Beloit canning facility operates like an assembly line. Raw ingredients enter at one end of the facility and are stored in a cooler or dry storage. Products (which may consist of meat and seasoning ingredients) are out in the open in about one-half of the plant.

¶ 15 Employees grind and blanch the meat, and cook and can the product. A sophisticated, high-temperature, heavy-pressure process is used to make the product shelf stable. The product is moved to areas designated for pickup to ship to distribution centers or retailers.

¶ 16 Regulations promulgated by the United States Department of Agriculture (USDA), the United States Food and Drug Administration (FDA), and the federal Occupational Safety and Health Administration (OSHA) govern Hormel's production facilities. Products containing meat are regulated by the United States Department of Agriculture Food Safety Inspection Service. Products not containing meat are regulated by the United States Food and Drug Administration. The federal Occupational Safety and Health Administration regulates workplace safety.

¶ 17 Federal regulations require Hormel to meet standards of cleanliness, quality, and safety in its plant and products. For example, the federal regulations require that persons working with food protect against contamination of food by maintaining hygienic practices like washing hands and wearing clean outer garments. While the federal regulations set forth performance standards, they generally do not require these standards be satisfied in any particular manner.

¶ 18 Hormel has adopted Work Rules in an effort to meet performance standards, maintain sanitation, and protect employees and consumers. The Work Rules require that employees wear certain clothing and equipment. If employees do not wear the required clothing and equipment, the employees are subject to discipline, up to discharge.

¶ 19 Specifically, Hormel's Work Rules require employees wear Hormel-provided hard hats, hearing protection, and eye protection. All exposed head and facial hair must be covered by a hair net. Employees are to wear clean and sanitary footwear at all times.5 Clothing is provided by Hormel and must be changed daily or more often (as good sanitation practices dictate) and shall not be worn outside the plant. Hormel leases the clothes from Aramark, which picks up worn clothes, launders them, and drops off clean clothes.

¶ 20 Hormel does not compensate employees for time spent putting on or taking off (donning and doffing) the required clothing and equipment at the beginning and end of the day.

¶ 21 The parties stipulated that the median time for donning and doffing the required clothing and equipment at the beginning and end of the day, washing hands, and walking to and from the assigned work stations was 5.7 minutes per day, 28.5 minutes per week, or approximately 24 hours per year.6

¶ 22 The employees must "swipe in" between 1 and 29 minutes before the scheduled start of their shift. The employees must have their clothes changed, be swiped in, and be at their workstations at their assigned start times or they will be considered tardy. The employees are paid by Hormel beginning at the scheduled start of their shift, not at the time of swiping in.

¶ 23 As a result, the employees are not paid for the time spent putting on their clothing and equipment before the scheduled start of their shift. The employees are also not paid for a 30-minute meal period. To leave the facility during the 30-minute meal period, the employees must doff their clothing and equipment before leaving the facility and don their clothing and equipment before returning to work.

¶ 24 Upon completion of the assigned duties for the day and after being released from work, the employees must "swipe out" and change back into their street clothes.

¶ 25 The employees are paid until they officially "swipe out." Thereafter, the employees must change from their required clothing and equipment into their street clothes. As a result, the employees are not paid for the time spent taking off their clothing and equipment after they swipe out.

¶ 26 In sum, the paid "workday" for employees at Hormel is measured from the scheduled commencement of the shift to the swipe out at the electronic clock after release by the supervisor less 30 minutes for the employees' meal period.

¶ 27 The circuit court found, on the great weight of the credible evidence, that putting on and taking off the clothing and equipment required by Hormel at the beginning and end of the day is integral and indispensable to the performance of the employees' principal activities. According to the circuit court, a close connection exists between the donning and doffing; compliance with the federal regulations of the United States Department of Agriculture, the Food and Drug Administration, and Occupational Safety and Health Administration; and the employees' principal activities, producing canned food.

II

¶ 28 The standard of review applicable to the instant case is oft stated and is as follows:

¶ 29 This court will not overturn factual findings of the circuit court unless the findings are clearly erroneous. Royster-Clark, Inc. v. Olsen's Mill, Inc., 2006 WI 46, ¶ 11, 290 Wis.2d 264, 714 N.W.2d 530.

¶ 30 The appeal revolves around the interpretation and application of Wis. Admin. Code § DWD 272.12. When interpreting administrative regulations the court uses the same rules of interpretation as it applies to statutes. Wis. DOR v. Menasha Corp., 2008 WI 88, ¶ 45, 311 Wis.2d 579, 754 N.W.2d 95. Interpretation and application of a regulation is ordinarily a question of law that this court determines independently of the circuit court or court of appeals, but benefiting from the analysis of the other courts. State v. Brown, 2006 WI 131, ¶ 18, 298 Wis.2d 37, 725 N.W.2d 262.

¶ 31 To determine the meaning of a regulation, we turn first to the text. Each word shall be interpreted so as to give it meaning, and none shall be treated as superfluous. See In re Guardianship of James D.K., 2006 WI 68, ¶ 16, 291 Wis.2d 333, 718 N.W.2d 38. The context of the regulation and case law interpreting the regulation are also considered.

¶ 32 The parties dispute whether a circuit court's findings that an activity is integral and indispensable to the employees' principal activities is a question of fact or a question of law. If the question is one of fact, this court will not overturn the factual findings of the circuit court unless the findings are clearly erroneous. Wis. DOR, 311 Wis.2d 579, ¶ 45, 754 N.W.2d 95. If the question is one of law, this court decides the question independently while benefiting from the analyses of the circuit court and court of appeals. Wis. DOR, 311 Wis.2d 579, ¶ 44, 754 N.W.2d 95; Brown, 298 Wis.2d 37, ¶ 18, 725 N.W.2d 262.

¶ 33 The Union raised the issue of the standard of review in its response brief, relying on a treatise that states, without citation, that "[w]hether an activity is characterized as ... `an integral and indispensable part' of the employee's principal activities (as distinguished from preliminary or postliminary to those activities), is a question of fact to be determined from all the circumstances."7

¶ 34 In reply, Hormel argued that the facts are undisputed and the interpretation and application of the regulations to undisputed facts is a question of law that the court decides independently of the circuit court or court of appeals.

¶ 35 We need not decide this issue. Whether we examine the questions certified as ones of fact or law, we conclude the circuit court reached the correct decision.8

III

¶ 36 We examine first whether the time spent donning and doffing Hormel's required clothing and equipment at the beginning and end of the day is considered compensable work time or non-compensable preliminary and postliminary activities under Wis. Admin. Code § DWD 272.12(2)(e).

¶ 37 The Department of Workforce Development regulations determining an employee's work hours are found in Wis. Admin. Code § DWD 272.12.

¶ 38 Wisconsin Admin. Code § DWD 272.12(1)(a)1. provides that an employee must be paid "for all time spent `in physical or mental exertion ... controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer's business.'"9

¶ 39 The parties agree that the donning and doffing are physical or mental exertion; are required by Hormel; and are pursued necessarily and primarily for the benefit of Hormel's business.

¶ 40 Compensable time is defined in the regulations in terms of a "workday." See Wis. Admin. Code § DWD 272.12(1)(a)2. Workday is defined as the "period between `the time on any particular workday at which such employee commences their principal activity or activities' and `the time on any particular workday at which they cease such principal activity or activities.'"10

¶ 41 This regulation leads us to the meaning of the phrase "principal activity or activities" of the employee.

¶ 42 "[P]rincipal activities" is defined in Wis. Admin. Code § DWD 272.12(2)(e) to include all activities that are "an integral part of a principal activity." (Emphasis added.) "Among the activities included as an integral part of the principal activity are those closely related activities which are indispensable to its performance."11 In other words, an integral part of a principal activity includes activities that are closely related to the principal activity and indispensable to its performance.12

¶ 43 The regulation gives three examples of "what is meant by an integral part of a principal activity" justifying compensation for an employee. The third example relates to a chemical plant worker who dons and doffs clothing and equipment. This example seems closest to the facts of the instant case, and is therefore most helpful in deciding the instant case. Here are the three examples in the regulations:

¶ 44 To determine whether the Hormel-required donning and doffing are merely incidental preparatory and concluding activities or are integral and indispensable to the employees' primary activities, we examine the third example, which we shall refer to as "the chemical plant example," and its interpretation and application by the court of appeals in Weissman v. Tyson Prepared Foods, Inc., 2013 WI App 109, 350 Wis.2d 380, 838 N.W.2d 502. We shall refer to this case as the Tyson Foods case.

¶ 45 The plaintiffs in Tyson Foods were employees of a meat processing plant in Jefferson County, Wisconsin, operated by Tyson Prepared Foods, Inc. Tyson Foods required its employees to put on sanitary clothing and equipment before they began their duties for each shift and to take off these items at the end of their shifts.14

¶ 46 The clothing and equipment involved in Tyson Foods are very similar to those in the instant case: hair nets; beard nets; frocks (a coat with snaps in front); vinyl gloves; vinyl sleeves; lightweight hard hats; safety glasses; ear plugs; and "captive shoes."15

¶ 47 In Tyson Foods, the court of appeals began its analysis with Wis. Admin. Code § DWD 272.12(1)(a)1. and determined that Tyson Foods controlled the employees' clothing and equipment and that requiring employees to put on and take off the required clothing and equipment primarily benefited the employer.16 Although the court of appeals viewed this initial inquiry as necessary, the court of appeals did not consider it dispositive.17

¶ 48 The Tyson Foods court of appeals then turned its inquiry to whether the period of contested compensation is included as a "principal activity," as distinguished from "preparatory and concluding activities," under Wis. Admin. Code § DWD 272.12(2)(e).18

¶ 49 The court of appeals concluded in Tyson Foods that the donning and doffing are compensable because they are integral and indispensable to the principal work activities of the employees in manufacturing food.

¶ 50 The court of appeals in Tyson Foods relied primarily on the chemical plant example set forth in Wis. Admin. Code § DWD 272.12(2)(e)(1)c. to analyze the issue. In this example, as set forth in full above, a chemical plant employee is entitled to compensation for time spent to don and doff protective clothing and equipment at the employer's premises.

¶ 51 Comparing the chemical plant employees and the Tyson Foods employees, the court of appeals determined that the chemical plant example in the regulations is analogous to the donning and doffing of the Tyson Foods clothing and equipment.19

¶ 52 In both the chemical plant example and Tyson Foods, safety laws, rules of the employer, and the nature of the work all require the employees to change clothes to do their respective jobs in the chemical plant and at the Tyson Foods processing plant.20 In the Tyson Foods case, there was no serious dispute that Tyson Foods required employees to don most if not all items to keep food from being contaminated, to operate more efficiently, and to limit Tyson Foods' liability for and costs associated with employees' injuries.21

¶ 53 Although Tyson Foods gave short shrift to the undisputed fact that its employees were required to don most of the clothing and equipment to protect the meat-consuming public from unappealing or even health-threatening food, the court of appeals did not. Certain of these items were worn at least in part to prevent contamination of food.22 To the court of appeals, "needing to avoid food contamination plainly adds to the indispensability of the donning and doffing."23

¶ 54 The court of appeals concluded that donning and doffing clothes and equipment in the Tyson Foods case was indispensable for the safety of the employees and the safety of the food they help produce.24 Thus, the time for donning and doffing was compensable.

¶ 55 The Tyson Foods case presents essentially the same fact situation as presented in the instant case.

¶ 56 Both Tyson Foods and Hormel operate food processing plants in Wisconsin subject to the same Wisconsin laws. The clothing and equipment requirements for employees of each company are essentially the same. Likewise, the clothing and equipment requirements for employees of each company serve essentially the same purposes: the safety of the employees and the safety of the food they help produce.

¶ 57 The testimony with regard to the purposes of Hormel's Work Rules is similar to the undisputed facts in Tyson Foods.

¶ 58 The Corporate Manager of Regulatory Compliance at Hormel testified that because Hormel's process is regulated both by the Food and Drug Administration and United States Department of Agriculture, Hormel employees are required "to be clean in a manner to prevent product alteration or the general creation of unsanitary type conditions."

¶ 59 When asked whether Hormel's clothing and equipment requirements were to comply with federal regulations, the Corporate Manager replied, "They are.... The government just kind of gives us what they call performance standards you know, hey, look, we know there's various means to the ends." The required donning and doffing of the sanitary company clothing and equipment at the Beloit facility is a "means to an end," complying with the federal regulations regarding food sanitation and workplace safety.

¶ 60 Although several Hormel employees testified that they could do their assigned job function at Hormel without the aid of the donned and doffed items, Hormel's plant operation required proper sanitation standards and protective equipment to meet the federal regulations. Cleanliness and food safety are "intrinsic element[s]" of preparing and canning food at the Hormel canning facility. The clothing and equipment is integral and indispensable to the performance to the employees' job function (principal work activity) of preparing canned food. See Wis. Admin. Code § DWD 272.12(2)(e)1.c.

¶ 61 Hypothetically the Hormel employees may be able to do their jobs in street clothes, however Hormel's Work Rules and Hormel's need to comply with federal regulations have created a tight connection between the donning and doffing and the principal activities of the employees.

¶ 62 In Tyson Foods and in the instant case, the clothing and equipment requirements at the beginning and end of the day are integral and indispensable to the employees' principal work activities. Putting on and taking off the required clothing and equipment at the beginning and end of the day is tied directly to the work the employees were hired to perform—food production—and cannot be eliminated altogether without degrading the sanitation of the food or the safety of the employees.

¶ 63 The employees in Tyson Foods and in the instant case were compelled by the nature of their jobs in food production to change clothing and wear equipment to ensure food and employee safety. The nature of the employees' work makes the employer's requirement of putting on and taking off clothing and equipment at the beginning and end of the day an integral part of the employees' principal activity.

¶ 64 Hormel dismisses Tyson Foods, contending that the Tyson Food s case "puts state law at odds with federal authority, namely, with the United States Supreme Court holding" in a recent decision, Integrity Staffing Solutions, Inc. v. Busk, ___ U.S. ___, 135 S.Ct. 513, 190 L.Ed.2d 410 (2014). As a result, Hormel urges us to overturn Tyson Foods.

¶ 65 Integrity Staffing does not conflict with Tyson Foods. Because the Wisconsin administrative regulations at issue here are substantially similar to federal regulations, federal cases may assist in our analysis. See Tyson Foods, 350 Wis.2d 380, ¶ 44, 838 N.W.2d 502; see also State v. Gudenschwager, 191 Wis.2d 431, 439, 529 N.W.2d 225 (1995).

¶ 66 In Integrity Staffing, one of the federal regulations involved was substantially similar to Wis. Admin. Code § DWD 272.12(2)(e); indeed the federal regulations use an illustration substantially similar to the chemical plant example in the Wisconsin regulations.25

¶ 67 The employees in Integrity Staffing worked in a warehouse retrieving products from shelves and packaging the products for delivery to Amazon.com customers.26 Integrity Staffing's employees were required to undergo antitheft security screening before leaving the warehouse each day.27 The question presented to the United States Supreme Court was whether the employees' time spent waiting to undergo and then undergoing the security screenings was compensable under the Fair Labor Standards Act.

¶ 68 The federal court of appeals upheld the employees' claim for compensation viewing the screenings as an integral and indispensable part of the principal activity the employees were employed to perform; the court viewed the screenings as necessary to the employees' primary work as warehouse employees and for Integrity Staffing's benefit.28 The United States Supreme Court reversed the federal court of appeals.

¶ 69 Applying federal regulations substantially similar to those at issue here, the United States Supreme Court held that "an activity is integral and indispensable to the principal activities that an employee is employed to perform—and thus compensable under the [Fair Labor Standards Act]—if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities."29 According to the Integrity Staffing Court, because the employer-required screenings were not tied to the productive work the employees were employed to perform—retrieving and packing products—and the screenings could have been eliminated without affecting the employees' ability to perform their principal activity of retrieving and packaging products,30 the time spent waiting to undergo and undergoing security screening was noncompensable.31

¶ 70 The reasoning in Integrity Staffing is not, as Hormel argues, "squarely the opposite of the Court of Appeals' reasoning in [Tyson Foods]." Rather, the reasoning in Integrity Staffing is consistent with Tyson Foods. Nor is Integrity Staffing inconsistent with prior federal precedent.32 Instead, Integrity Staffing once again clarified that whether an activity is integral and indispensable to an employee's principal activities is answered by reference to the nature of the employees' job duties. Simply put, the donning and doffing cases are fact dependent.

¶ 71 Both Integrity Staffing and Tyson Foods support the proposition that just because the employer requires employees to perform an activity that benefits the employer does not automatically render that activity integral and indispensable to an employee's principal work activities, and thus compensable. See Integrity Staffing, 135 S.Ct. at 519; Tyson Foods, 350 Wis.2d 380, ¶ 26, 838 N.W.2d 502. Both cases declare that an activity is integral and indispensable to the principal activities if it is an intrinsic element with which the employee cannot dispense if he or she is to perform the employee's principal activities.33 Integrity Staffing does not contradict Tyson Foods; Tyson Foods remains good law.

¶ 72 Another recent United States Supreme Court decision, Sandifer v. United States Steel Corp., ___ U.S. ___, 134 S.Ct. 870, 187 L.Ed.2d 729 (2014), discusses the issue of compensation for donning and doffing.

¶ 73 In Sandifer, employees were required to wear special clothing and protective equipment and devices because of the hazards at steel plants.34 The statutory provision interpreted in Sandifer was 29 U.S.C. § 203(o).35 Section 203(o) provides that the compensability of time spent "changing clothes or washing at the beginning or end of each workday" is a subject appropriately committed to collective bargaining.36 U.S. Steel, the defendant, contended that the provision in the collective bargaining agreement rendering noncompensable the time spent donning and doffing the special clothing and protective equipment and devices was a valid provision under 29 U.S.C. § 203(o).37

¶ 74 According to the Sandifer Court, the exception for collective bargaining agreements in 29 U.S.C. § 203(o) applies only when "changing clothes" is "`an integral and indispensable part of the principal activities for which covered workmen are employed.'"38 U.S. Steel did not dispute the Seventh Circuit's conclusion that were it not for 29 U.S.C. § 203(o) and the collective bargaining agreement, the time spent donning and doffing the special clothing and protective equipment and devices would have been integral and indispensable to the principal activities for which the employees were employed.39 Thus, the time would have been compensable.

¶ 75 Analyzing dictionary definitions of the statutory terms "change" and "clothes," the Sandifer Court concluded the time spent putting on and taking off the special clothing and protective equipment and devices was, on the whole, time spent "changing clothes" under 29 U.S.C. § 203(o).40 As a result, the time spent donning and doffing was not compensable under 29 U.S.C. § 203(o) and the collective bargaining agreement.41

¶ 76 No counterpart to 29 U.S.C. § 203(o) exists in Wisconsin law. Although the clothing and protective equipment and devices at issue in Sandifer were more specialized than those at issue in the instant case, the Sandifer case supports the conclusion that the clothing and equipment at issue in the instant case is integral and indispensable to the employees' principal work activities.

¶ 77 Moreover, although Hormel and the Union have entered into a collective bargaining agreement, the agreement does not speak to the compensability of time spent donning and doffing the required clothing and equipment.

¶ 78 Applying Tyson Foods, Integrity Staffing, and Sandifer, we conclude that donning and doffing the clothing and equipment at the beginning and end of the day in the instant case is "integral and indispensable" to the employees' principal activities of producing food products. Accordingly, we affirm the circuit court's judgment and order that the employees should be compensated for the 5.7 minutes per day spent donning and doffing the required clothing and equipment at the beginning and end of the day under Wis. Admin. Code § DWD 272.12.

IV

¶ 79 We next examine whether the time spent donning and doffing Hormel's required clothing and equipment during meal periods is considered compensable work time.

¶ 80 Hormel does not pay the employees for their 30-minute meal period.

¶ 81 In the circuit court, the Union argued that the unpaid meal periods were compensable under two regulations. First, Wis. Admin. Code § DWD 272.12(2)(c), which applies to "[r]est and meal periods." Second, Wis. Admin. Code § DWD 274.02(3), which provides the test for when a meal period is "on-duty," and thus counted as compensable work time.42

¶ 82 We will address the applicable regulations, Wis. Admin. Code §§ DWD 272.12(2)(c) and 274.02(3), in turn.

¶ 83 First, Wis. Admin. Code § DWD 272.12(2)(c)2. provides that "[b]ona fide meal periods of 30 minutes or more are not work time. . . . The employee must be completely relieved from duty for the purposes of eating regular meals. . . . The employee is not relieved if they are required to perform any duties, whether active or inactive, while eating."

¶ 84 Second, Wis. Admin Code § DWD 274.02(3) states that "[t]he employer shall pay all employees for on-duty meal periods, which are to be counted as work time. An on-duty meal period is a meal period where the employer does not provide at least 30 minutes free from work. Any meal period where the employee is not free to leave the premises of the employer will also be considered an on-duty meal period."

¶ 85 The circuit court declared that the required donning and doffing of clothing and equipment to leave the Hormel plant during the 30-minute meal periods denied employees a bona fide 30-minute meal period in violation of Wisconsin law. Nevertheless, the circuit court refused to award damages for employees who remained on site during the meal period. The circuit court did not adopt the Union's position that the employees were to be reimbursed for the alleged lost 30-minute meal break when the employees did not leave the premises but simply sat in the lunch room for 30 minutes and ate their meal. The circuit court labeled the Union's contention far too broad in its scope and found it was unsupported by credible evidence.43

¶ 86 As the circuit court acknowledged, "evidence about the lunch period was sparse." The circuit court apparently agreed with Hormel's position that even if liability were found for the unpaid meal period, damages could be awarded only to the employees who left the premises during the meals period. The circuit court accepted the evidence that 1% of the employees donned and doffed the clothing and equipment and left the premises for meals. The parties stipulated that if the circuit court accepted the 1% evidence, the damages on the unpaid meal period claim would be $15,000.

¶ 87 The parties explained in the stipulation that the stipulation was entered to limit the issues and expedite the trial. Neither party took any opportunity at the circuit court or thereafter to challenge the circuit court's $15,000 damage award.

¶ 88 In this court, neither Hormel nor the Union made any arguments specifically regarding the compensability of the unpaid meal periods. They merely discussed the meal periods in stating the background of the dispute.

¶ 89 Hormel's counsel never discussed the compensability of the unpaid meal periods in his briefs to the court of appeals or this court or in oral argument.

¶ 90 As the concurrence/dissent points out, the Union's counsel did responded to several questions from the court at oral argument regarding the compensability of unpaid meal periods. However, the Union's counsel did not, as the concurrence/dissent contends, "renew" any claim for compensation for unpaid meal periods aside from defending the circuit court's $15,000 damage award for the 1% of the employees who left the premises for meals.44 As the excerpts of oral argument quoted in the concurrence/dissent show, the Union's counsel was "not asking for pay for the other 99%" of the employees.45

¶ 91 Instead, Hormel's and the Union's arguments to both this court and the court of appeals addressed only the circuit court's determination that 5.7 minutes spent per day donning and doffing the required clothing and equipment is "integral and indispensable" to the employees' principal work activities of food production.

¶ 92 As explained previously, we affirm the circuit court's conclusion that the 5.7 minutes spent per day donning and doffing the required clothing and equipment is integral and indispensable to the employees' principal work activities.

¶ 93 We do not affirm the circuit court's declaration that the required donning and doffing of clothing and equipment to leave the Hormel plant during the 30-minute meal periods denied employees a bona fide 30-minute meal period in violation of Wisconsin law. We accept the $15,000 damage award because the parties accepted it and have not disputed it in this court.46

¶ 94 The circuit court's awarding $15,000 based on the parties' stipulation appears to be an attempt by the circuit court and the parties to efficiently resolve this dispute without a definitive ruling on the meal period. The parties were trying to limit the issues and expedite the trial on the issue of donning and doffing the Hormel-required clothing and equipment at the beginning and end of the day. In the absence of evidence and argument, we, like the circuit court, will not disturb the $15,000 accommodation between the parties.

V

¶ 95 Having determined that the donning and doffing at the beginning and end of the day is integral and indispensable to the employees' principal activities in producing food products, we next address whether this time is non-compensable under the doctrine of de minimis non curat lex (the law does not concern itself with trifles).

¶ 96 The circuit court and Hormel viewed Hormel as having the burden of proof on the issue of the de minimis non curat lex doctrine. The circuit court determined that "Hormel has failed to carry its burden to show the applicability of the de minimis doctrine, and, therefore, that doctrine is not controlling (assuming it exists at all in Wisconsin law)."

¶ 97 The de minimis non curat lex doctrine "permits employers to disregard . . . otherwise compensable work `[w]hen the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours.'" Singh v. City of New York, 524 F.3d 361, 370 (2d Cir.2008) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946)).47

¶ 98 Assuming, without deciding, that the de minimis doctrine is applicable to claims under Wis. Admin. Code § DWD 272.12, we conclude that in the instant case, the de minimis doctrine does not bar compensation for the time spent donning and doffing the required clothing and equipment because the time spent donning and doffing is not a "trifle."

¶ 99 Although the de minimis non curat lex doctrine is an established feature of the Federal Fair Labor Standards Act,48 no Wisconsin cases, statutes, or regulations state that the de minimis doctrine applies to Wisconsin DWD regulations or in employment disputes. Wisconsin courts have, however, applied the doctrine in other unrelated contexts. See, e.g., Town of Delavan v. City of Delavan, 176 Wis.2d 516, 532, 500 N.W.2d 268 (1993) (annexation); Waupaca Cnty. v. Bax, No. 2009AP1406, unpublished slip op., 2010 WL 307919 (Wis.Ct.App. Jan. 28, 2010) (zoning).

¶ 100 Despite the lack of Wisconsin case law or state statutory guidance with regard to the de minimis doctrine in the instant case, a review of federal case law assists in reaching our conclusions.

¶ 101 As Hormel noted, the United States Supreme Court first applied the maxim of de minimis non curat lex as a possible defense to disputes originating under the Federal Labor Standards Act in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). The United States Supreme Court stated that overtime compensation that concerns "only a few seconds or minutes of work" may be disregarded as de minimis, reasoning that "[s]plit-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act." Anderson, 328 U.S. at 692, 66 S.Ct. 1187. The de minimis doctrine appears in the federal regulations. See 29 C.F.R. § 785.47. In contrast to federal law, the de minimis doctrine has no explicit basis in the Wisconsin statutes or Wisconsin regulations in the instant case.

¶ 102 In the instant case, employees spend approximately 24 hours per year donning and doffing. Viewed in light of the employees' hourly rate of $22 per hour, the unpaid period in question may amount to over $500 per year for each employee and substantial sums for Hormel. We agree with the circuit court that in the instant case this time is not a "trifle."

¶ 103 Hormel's primary reliance on Mitchell v. JCG Industries, Inc., 745 F.3d 837 (7th Cir.2014), is misplaced. In Mitchell, the Seventh Circuit held the de minimis doctrine applicable to donning and doffing during a meal break. Mitchell, 745 F.3d at 841-42. After discussing the parties' disagreement regarding the amount of time spent donning and doffing equipment, the federal court of appeals quoted the Supreme Court in Sandifer v. U.S. Steel Corp., ___ U.S. ___, 134 S.Ct. 870, 881, 187 L.Ed.2d 729 (2014), that "it is most unlikely Congress meant § 203(o) to convert federal judges into time-study professionals." Mitchell, 745 F.3d at 843 (quoting Sandifer, 134 S.Ct. at 881). Thus, the Seventh Circuit held that under the de minimis doctrine, it was better to leave to collective bargaining, rather than judicial determination, the issue of how much time was spent donning and doffing equipment on different days. Mitchell, 745 F.3d at 843.

¶ 104 Here, Hormel and the Union stipulated to the donning and doffing period in question at the beginning and end of the day: 5.7 minutes per day, 28.5 minutes per week, approximately 24 hours per year. As a result, in the instant case the court need not be a "time-study professional" to determine the time spent donning and doffing the clothing and equipment.

¶ 105 Assuming, without deciding, that the de minimis doctrine applies to claims arising under Wis. Admin. Code § DWD 272.12, the de minimis doctrine does not bar compensation for the time spent donning and doffing the required clothing and equipment at the beginning and end of the day because the time spent donning and doffing is not a "trifle." The donning and doffing of the clothing and equipment at the beginning and end of the day is integral and indispensable to the employees' principal activity—to successfully and sanitarily produce Hormel's products. Viewed in the aggregate, this time amounts to over $500 per year for each employee, a figure that is certainly significant to an employee and to Hormel. Accordingly, we conclude that the period spent donning and doffing at the beginning and end of the day is compensable under Wis. Admin. Code § DWD 272.12 and affirm the judgment and order of the circuit court.

¶ 106 For the reasons set forth, we conclude:

The judgment and order of the circuit court is affirmed.

¶ 107 REBECCA G. BRADLEY, J., did not participate.

PATIENCE DRAKE ROGGENSACK, C.J. (concurring in part, dissenting in part).

¶ 108 While I do not join the lead opinion,1 I agree with its conclusion that donning and doffing of company-required clothing and gear at the beginning and end of the workday is "an integral part of a principal activity" of Hormel Foods Corporation for which compensation is required.2 I also agree that under the facts of this case Hormel is not relieved of its obligation to compensate for 5.7 minutes per day for those tasks by the de minimis rule.3

¶ 109 I dissent from the lead opinion because I conclude that Hormel is not required to further compensate its employees due to doffing and donning by employees who choose to leave the workplace for lunch. Leaving during the lunch break serves no interest of Hormel, is not "an integral part of a principal activity" of the employer within the meaning of Wis. Admin. Code § DWD 272.12(2)(e)1. (2009), and serves only employees' interests. I also dissent because I would cabin the time for which compensation is due each employee at 5.7 minutes per workday. That is the total time presented to us as a stipulation by the parties for an employee to accomplish donning and doffing at the beginning and end of a workday. If the time allocated for donning and doffing were not cabined at a specified number of minutes per employee per workday, the de minimis rule would preclude compensation because keeping accurate payroll records of the varying time that each employee spends donning and doffing on each workday would appear to be a nearly impossible administrative task for Hormel. Cabining the time at a specified number of minutes per employee per workday for which compensation is due was the mode employed in prior contracts between Hormel and the Union for those tasks. Accordingly, I respectfully concur in part and dissent in part from the lead opinion.

I. BACKGROUND

¶ 110 The lead opinion ably sets out facts as presented by the parties, who do not dispute what occurred on a factual basis. I repeat only a few facts here to draw the reader into the discussion that follows.

¶ 111 This is a wage and hour claim against Hormel, whose business is food production. Hormel's Beloit plant has assembly-line food preparation where raw materials enter the facility and move through a production-line process where meat, seasonings and other ingredients are ground, chopped and prepared for cooking and canning. During part of the food preparation, product ingredients are in open containers as employees work to prepare and cook various raw materials. The production process of food products ends when high temperature, heavy pressure canning occurs.

¶ 112 The claim here arises because Hormel requires employees to wear Hormel-provided clothing, "whites," and protective gear, such as glasses, hair and beard nets, and hard hats, while working and to remove the whites and gear before they leave Hormel's facility.4 When employees choose to leave Hormel's facility during the 30-minute lunch break, they are required to doff their whites and gear and to don them again before they return to food preparation.

¶ 113 Hormel is not currently compensating employees for donning and doffing. However, in an earlier union contract, Hormel compensated employees 12 minutes per day for these tasks.5 During subsequent contract negotiations, the Union bargained away this compensation provision.6

¶ 114 The parties stipulated that 5.7 minutes is the total average time per day an employee requires to don and doff whites and gear at the beginning and end of the workday. The questions presented to us are four-fold: (1) whether donning and doffing of clothing and gear that Hormel requires employees to put on at the start of the workday and remove before they leave the workplace is time worked for which compensation is due under Wisconsin law; (2) whether doffing and donning of clothing and equipment that occurs when employees choose to leave during the 30-minute lunch break is time worked for which compensation is due under Wisconsin law; (3) whether Hormel is relieved from compensating its employees for donning and doffing by the de minimis rule; and (4) if the de minimis rule does not apply, what is the amount of time for which compensation is due for past, and will be due for future, donning and doffing.

II. DISCUSSION

A. Standard of Review

¶ 115 To decide the questions presented, we must interpret Wisconsin Administrative Code provisions, most specifically, Wis. Admin. Code § DWD 272.12(2)(e)1., as it drives the determination of "hours worked" by Hormel employees. In that regard, whether donning and doffing are "an integral part of a principal activity" of the employer within the meaning of § DWD 272.12(2)(e)1. is a question of law that we review independently. Daimler-Chrysler v. LIRC, 2007 WI 15, ¶ 10, 299 Wis.2d 1, 727 N.W.2d 311.

¶ 116 If Wis. Admin. Code § DWD 272.12(2)(e)1. applies to donning and doffing, whether the de minimis rule nevertheless precludes Hormel employees' recovery for otherwise compensable time is also a question of law for our independent review. Lindow v. United States, 738 F.2d 1057, 1062 (9th Cir.1984).

B. Section DWD 272.12(2)(e)1.

1. Beginning and end of workday

¶ 117 If donning and doffing come within Wis. Admin. Code § DWD 272.12(2)(e)1., those tasks are part of the hours worked for which compensation is due because they are part of the "Workday." § DWD 272.12(1)(a)2. I agree with the lead opinion's conclusion that § DWD 272.12(2)(e)1. requires Hormel to compensate its employees for 5.7 minutes per day that have been cabined for donning and doffing clothing and equipment at the beginning and end of the workday.7 I agree because a principal activity of Hormel is sanitary food production and Hormel's requirement that employees wear clean whites, hair nets, beard nets and other equipment designed to keep foreign objects out of the food is an integral part of the production of sanitary food. See § DWD 272.12(2)(e)1.c. As the court of appeals correctly reasoned in regard to Weissman's claim for donning required clothing and gear at the start of the workday and doffing at day's conclusion, "donning and doffing here constitute `preparatory and concluding' activities that are `an integral part of a principal activity'" of the employer, again sanitary food production. Weissman v. Tyson Prepared Foods, Inc., 2013 WI App 109, ¶ 2, 350 Wis.2d 380, 838 N.W.2d 502.

2. Lunch break

¶ 118 The circuit court granted compensation for doffing and donning clothing and gear for those employees who chose to leave Hormel's facility during their lunch break. The Union had asked for 30 minutes of additional compensation because it claimed that doffing and donning in order to leave the workplace during lunch break caused the break to be less than 30 minutes long and therefore compensation for the full 30 minutes was due.

¶ 119 Before us, the Union renews its claim that compensation is due for an additional 30 minutes because the time required for doffing and donning that occurs when employees choose to leave the workplace reduces the lunch break to less than 30 minutes, the minimum time required for an unpaid break.8 The lead opinion affirms the circuit court, and ducks the question presented about the compensability of the doffing and donning during the lunch break by asserting, "neither Hormel nor the Union made any arguments specifically regarding the compensability of the unpaid meal periods."9

¶ 120 The lead opinion minimizes what occurred at oral argument before us. For example, the following questions were asked and answered:

¶ 121 I conclude the reasoning that supports the conclusion that donning and doffing at the beginning and end of the workday are "an integral part of a principal activity" of Hormel and therefore require compensation does not support compensation for doffing and donning when employees choose to leave Hormel's facility during their lunch break, nor does it support 30 minutes more pay because time required to doff and don reduces the lunch break below 30 minutes.

¶ 122 First, no interest or activity of Hormel is served by employees leaving its facility during lunch break. Stated otherwise, leaving Hormel's facility at lunch does not aid in sanitary food production, which is a principal activity of Hormel. Second, the choice to leave Hormel's facility at lunch is totally each individual employee's choice, not Hormel's.

¶ 123 Wisconsin Admin. Code § DWD 272.12(2)(e)1. is directed at "a principal activity" of the employer, Hormel. It is § DWD 272.12(2)(e)1. that drives the obligation to compensate employees for the initial donning and final doffing of whites and gear. Section DWD 272.12(2)(e)1. is not directed at principal activities of employees. However, leaving the workplace during lunch break is driven by principal activities of employees, i.e., employees choose to leave to further their own interests. Furthermore, approximately 1% of employees choose to leave during lunch break. With 99% of employees not undertaking an activity, that activity cannot reasonably be contended to constitute a "principal activity" of the employer. Instead, the 1% of employees is furthering their own principal activity, i.e., their choice to leave for lunch. Section DWD 272.12(2)(e)1. does not require compensation for principal activities of employees.

¶ 124 And finally, while employees are free to leave the workplace during lunch break, it is their personal and voluntary choice that causes them to leave Hormel's facility. Their leaving serves no interest of Hormel. Accordingly, I conclude that Hormel is not required to compensate employees who leave the workplace for their entire lunch break, as the Union requests, or for a portion thereof, as the circuit court ordered. Therefore, I would reverse the order of the circuit court in regard to payment for lunchtime doffing and donning, which order the lead opinion does not overturn.10

C. De Minimis Rule

¶ 125 Hormel contends that all donning and doffing should fall outside of its obligation to provide compensation because of the de minimis rule. The lead opinion concludes that donning and doffing at the beginning and end of the workday are not de minimis, assuming that the de minimis rule may be applied to the Union's claims.11 The lead opinion does not discuss whether the de minimis rule may be applied to doffing and donning by those employees who choose to leave during their lunch break.

¶ 126 The United States Supreme Court discussed application of the de minimis rule in regard to a federal wage and hour claim in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). There, the Court said that work "pursued necessarily and primarily for the benefit of the employer and his business" and rightly included in "the statutory workweek" may nevertheless go without payment if it is de minimis. Id. at 691-92, 66 S.Ct. 1187 (citation omitted).

¶ 127 To determine whether the de minimis rule applies in a particular context, one must consider whether the factual predicates for the rule's application are met. In Lindow, the Ninth Circuit Court of Appeals carefully explained a test that it applied when considering whether compensation is excused that otherwise would be due because the work is de minimis. There, employees of the Army Corps of Engineers (Corps) sought overtime compensation for the Corps' requirement that they report to work 15 minutes before the start of their scheduled shifts to perform certain tasks that took part of the required 15 minutes. Lindow, 738 F.2d at 1059.

¶ 128 Lindow explained that the "de minimis rule is concerned with the practical administrative difficulty of recording small amounts of time for payroll purposes." Id. at 1062. The court reasoned that keeping accurate track of varying, small amounts of time for many employees could be an overwhelming task for employers. Id. at 1063 (citing Veech & Moon, De Minimis Non Curat Lex, 45 Mich. L. Rev. 537, 551 (1947) and its conclusion that Anderson was concerned with "just plain everyday practicality").

¶ 129 Lindow also explained that an "important factor in determining whether a claim is de minimis is the amount of daily time spent on the additional work[,] . . . [although n]o rigid rule can be applied with mathematical certainty." Id. at 1062 (citing Frank v. Wilson & Co., 172 F.2d 712, 716 (7th Cir.1949) and Nardone v. Gen. Motors, Inc., 207 F.Supp. 336, 341 (D.N.J.1962)). Further, the court considered the "size of the aggregate claim" for those claims where time expended may have been minimal on a daily basis. Id. at 1063. And finally, Lindow noted that "in applying the de minimis rule, we will consider whether the claimants performed the work on a regular basis." Id. (citing Smith v. Cleveland Pneumatic Tool, Co., 173 F.2d 775, 776 (6th Cir.1949), as applying de minimis rule where unpaid work did not occur on a daily basis).

¶ 130 I adopt and apply the Lindow test, summarizing it as follows: (1) the time at issue must be otherwise compensable by the employer and (2) consideration must be given to (a) the practical, administrative difficulty of accurately recording small amounts of additional time that may vary from employee to employee, (b) the regularity on which additional work is performed, (c) the time spent each day on additional work, and (d) the size of the aggregate claim for additional compensation. Id. at 1062-63.

¶ 131 In the case now before us, unless the de minimis rule applies, the cabined 5.7 minutes per day for donning whites and required gear at the beginning of the workday and doffing at the end of the workday is compensable because it is integral to a principal activity of Hormel. Weissman, 350 Wis.2d 380, ¶ 2, 838 N.W.2d 502. However, because doffing and donning by those employees who choose to leave during lunch break is not compensable, the de minimis rule has no application there. Anderson, 328 U.S. at 691-92, 66 S.Ct. 1187; Lindow, 738 F.2d at 1063.

¶ 132 As I apply the Lindow test to determine whether the de minimis rule eliminates Hormel's obligation for compensation of the stipulated total time of 5.7 minutes per day for donning at the beginning of the workday and doffing at the end of the workday, I note that if Hormel were required to record for payroll purposes the varying amounts of time that each individual employee expends to don and doff at the beginning and end of each workday, it would appear to be almost an administrative impossibility to do so accurately. Furthermore, imposing such an obligation on Hormel could lead to an unending series of wage and hour claims by employees who contend that Hormel did not record the correct amount of time on particular days for particular employees. Stated otherwise, if the total time per day that is due for donning and doffing were not cabined at a stipulated amount, all donning and doffing would be precluded by the de minimis rule.

¶ 133 Other courts have used the de minimis rule to eliminate otherwise compensable time that was too burdensome to record accurately. See Mitchell v. JCG Indus., Inc., 745 F.3d 837, 843 (7th Cir. 2014) (precluding an obligation to record small, varying amounts of time for payroll purposes in part because it would turn judges into "time-study professionals" when complaints about accuracy of recording were made).

¶ 134 However, as the claim is presented to us, the Union and Hormel have cabined the total time taken to don and doff at the beginning and end of a workday at 5.7 minutes per employee. In addition, the Union has not requested that we impose an obligation on Hormel to record for payroll purposes the actual time spent by each employee on each day.

¶ 135 The Union's approach of seeking recovery for an agreed amount of compensable time on a daily basis is consistent with the approach the Union took when donning and doffing were accorded in collective bargaining.12 It also frees Hormel from what would be a near administrative impossibility to do accurately.

¶ 136 I note that the tasks for which compensation is required occur on a daily basis for each employee engaged in food preparation. In addition, although 5.7 minutes per day is a small amount of time, because it is expended every day, the aggregate amount of each employee's claim per year is $500, which is significant. It is also significant to Hormel as an aggregate amount for all food preparation employees.

¶ 137 Accordingly, I conclude that in the context presented by the case at hand, the de minimis rule does not apply to preclude compensation for 5.7 minutes per day for each food preparation employee who dons whites and required gear at the start of the workday and doffs them at the day's conclusion.

D. Cabining Time Allotted

¶ 138 If the lead opinion were construed as leaving the amount of donning and doffing time open to adjustment for future work days, I could not concur with the lead opinion in any respect. This is so because without cabining the time at a specified number of minutes per employee per day for which compensation is due, the entire claim would be precluded by the near impossibility of Hormel's accurately recording small, varying amounts of time for payroll purposes for each employee. However, with compensable time cabined at a stipulated amount, Hormel knows what compensation is due for past work. Hormel also can choose to compensate through shortening future workdays by 5.7 minutes so that it is not put in the position of exceeding a 40-hour work week in the future. Accordingly, cabining the time allotted for which compensation is due is necessary to my decision to agree with the lead opinion in part.

III. CONCLUSION

¶ 139 While I do not join the lead opinion, I agree with its conclusion that donning and doffing of company-required clothing and gear at the beginning and end of the workday is "an integral part of a principal activity" of Hormel for which compensation is required. I also agree that under the facts of this case Hormel is not relieved of its obligation to compensate for 5.7 minutes per day for those tasks by the de minimis rule.

¶ 140 I dissent from the lead opinion because I conclude that Hormel is not required to further compensate its employees due to doffing and donning by employees who choose to leave the workplace for lunch. Leaving during the lunch break serves no interest of Hormel, is not "an integral part of a principal activity" of the employer within the meaning of Wis. Admin. Code § DWD 272.12(2)(e)1 and serves only employees' interests. I also dissent because I would cabin the time for which compensation is due each employee at 5.7 minutes per workday. That is the total time presented to us as a stipulation by the parties for an employee to accomplish donning and doffing at the beginning and end of a workday. If the time allocated for donning and doffing were not cabined at a specified number of minutes per employee per workday, the de minimis rule would preclude compensation because keeping accurate records of the varying time that each employee spends donning and doffing on each workday would be a nearly impossible administrative task for Hormel. Cabining the time at a specified number of minutes per employee per workday for which compensation is due was the mode employed in prior contracts between Hormel and the Union for those tasks. Accordingly, I respectfully concur in part and dissent in part from the lead opinion.

¶ 141 I am authorized to state that Justice DAVID T. PROSSER, JR. joins this opinion.

MICHAEL J. GABLEMAN, J. (dissenting).

¶ 142 I agree with the lead opinion's and the concurring/dissenting opinion's conclusion that Weissman v. Tyson Foods, Inc., 2013 WI App 109, 350 Wis.2d 380, 838 N.W.2d 502, review granted, 2014 WI 3, 352 Wis.2d 351, 842 N.W.2d 359, need not be overruled. However, I do not agree with the lead opinion's and the concurring/dissenting opinion's conclusion that Hormel must compensate its employees for the time they spend "donning and doffing" company-required "whites" at the Beloit cannery. Unlike a majority of this court, I conclude that the "donning and doffing" of the "whites" in this case is not "integral and indispensable" to the employees' principal work activity of canning food.

¶ 143 Because an "integral and indispensable" analysis is context-specific, I begin by laying out the facts of the present case.1 I then take up the two issues before this court: (1) is the "donning and doffing" of company-required "whites" compensable work time or non-compensable preliminary and postliminary activities under Wis. Admin. Code § DWD 272.12(2)(e); and (2) if the time spent "donning and doffing" is otherwise compensable work time, is this time non-compensable under the doctrine of de minimis non curat lex?

I. FACTUAL BACKGROUND

¶ 144 Hormel Foods Corporation ("Hormel") is a multi-national company specializing in food production. All the parties and the lead opinion agree that "Hormel is a fine employer with a quality record and a history of producing good, safe food for customers around the world." Lead op., ¶ 12.

¶ 145 Hormel has a variety of food producing plants located in different states. At every one of these plants, and without regard to what is being produced, Hormel requires its employees to "don and doff" either "whites" or "blues." Most employees wear "whites," but the maintenance department wears "blues." Every day Hormel employees "don and doff" hardhats, hearing protection, eye protection, hair nets, shoes,2 and clean clothes. I use the term "whites" to refer to all of the above described items. Depending on the nature of the job, some employees "don and doff" additional clothing and gear on top of their "whites." Currently, Hormel's employees are not paid for the time it takes to "don and doff" the "whites."3 "Donning and doffing" the "whites" takes, at the median, 2.903 minutes per day. More specifically, "donning" the "whites" takes, at the median, 2 minutes, 3.84 seconds (or 2.064 minutes),4 and "doffing" the "whites" takes, at the median, 50.34 seconds (or .839 minutes).5 "Donning and doffing" the "whites," washing hands,6 and walking to an assigned work station takes,7 at the median, 5.7 minutes per day.8

¶ 146 This case concerns only Hormel's Beloit cannery. The Beloit cannery employs approximately 290 people for various types of work ranging from quality control technician to forklift driver to sanitation crew member. The record reflects that only half of Hormel's employees at the Beloit cannery work near open product. Additionally, only half of the Beloit cannery has open product in it.

¶ 147 As a cannery, the Beloit facility is mainly tasked with preparing, canning, and shipping "shelf-stable" canned goods, including items such as Hormel Chili, Mary Kitchen Hash, and Chi-Chi's Salsa. This process is largely assembly like: out-side suppliers deliver raw product in a receiving area; the product is cooked; the cooked product is placed into a can or glass container; and the canned product is sent through a final heating process. It is this final heating process, called "12-D cook" for canned products or "acidification" for glass products, that renders the product shelf-stable.

¶ 148 The 12-D cook and acidification processes are quite technical. For example, Resha Hovde, Hormel's corporate manager of regulatory compliance and HACCP, testified that Hormel's 12-D cook process

In short, the 12-D cook and acidification processes "destroy any organisms of concern" such that any organism in the can or glass container "certainly wouldn't be a food safety issue."9 No employees come into contact with open product after the 12-D cook or acidification processes. The next time the product would come into contact with someone would be when a consumer opens the can.

¶ 149 As noted by the lead opinion, Hormel is subject to federal regulation by the United States Department of Agriculture (USDA), the United States Food and Drug Administration (FDA), and the federal Occupational Safety and Health Administration (OSHA). These regulations ensure that Hormel satisfies cleanliness, quality, and safety standards; however, these regulations "do not require these standards be satisfied in any particular manner." Lead op., ¶ 17. Instead, the regulations "generally speak to the point that [Hormel] need[s] [its] employees to be clean in a manner to prevent product adulteration or the general creation of unsanitary type conditions." Notably, the circuit court found,

Thus, one way Hormel promotes cleanliness, quality, and safety is by having its employees "don and doff" the "whites." But this "donning and doffing" is not mandated by any regulation.

II. THE "DONNING AND DOFFING" OF THE "WHITES" IS NOT COMPENSABLE WORK TIME UNDER THE CODE OR PRECEDENT.

A. WISCONSIN ADMIN. CODE § DWD 272.12

¶ 150 To resolve this case, I must interpret and apply Wis. Admin. Code § DWD 272.12. Under Wis. Admin. Code § DWD 272.12(1)(a)1., employees "must be paid for all time spent in `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's business.'" An employee's workweek "ordinarily includes `all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed workplace.'" Wis. Admin. Code § DWD 272.12(1)(a)1.

¶ 151 Compensable time is measured in terms of a "workday." According to Wis. Admin. Code § DWD 272.12(1)(a)2., the "`[w]orkday,' in general, means the period between `the time on any particular workday at which such employee commences their principal activity or activities' and `the time on any particular workday at which they cease such principal activity or activities.'" Activities that fall outside the workday are called "preliminary" or "postliminary" activities. See Wis. Admin. Code § DWD 272.12(2)(e)1.c. Pursuant to Wis. Admin. Code § DWD 272.12(2)(e), the "term `principal activities' includes all activities which are an integral part of a principal activity." Moreover,

Wis. Admin. Code § DWD 272.12(2)(e)1.c. (emphasis added).

¶ 152 To summarize, if the "donning and doffing" is a preliminary or postliminary activity, then it falls outside the workday and does not qualify as compensable work time. In contrast, if the "donning and doffing" is a principal activity, then it falls within the workday and qualifies as compensable work time. Principal activities include those activities that are an "integral and indispensable" part of a principal activity.

B. PRECEDENT: WEISSMAN v. TYSON FOODS, INTEGRITY STAFFING SOLUTIONS, INC. v. BUSK, STEINER v. MITCHELL, AND MITCHELL v. KING PACKING CO.

¶ 153 In addition to interpreting and applying the pertinent portions of Wis. Admin. Code § DWD 272.12, I also look to applicable case law as a guide for determining when an activity is "integral and indispensable." Four cases, one from the court of appeals and three from the Supreme Court of the United States are particularly relevant; thus, a brief recitation of the facts and holdings of each case is appropriate.

¶ 154 In Weissman v. Tyson Foods, Inc., 2013 WI App 109, 350 Wis.2d 380, 838 N.W.2d 502, review granted, 2014 WI 3, 352 Wis.2d 351, 842 N.W.2d 359,10 the court of appeals considered whether the "donning and doffing" of sanitary and protective gear was compensable work time. 350 Wis.2d 380, ¶ 1, 838 N.W.2d 502. There, the Tyson employees at the Jefferson plant primarily produced pepperonis, a ready-to-eat meat product. Id., ¶ 4. To answer the question of whether the employees "donning and doffing" qualified as compensable worktime, the court conducted a two-step analysis.

¶ 155 First, it began with the statutory language of Wis. Admin. Code § DWD 272.12(1)(a)1., which contains two requirements: the activity (1) must be "controlled or required by the employer" and (2) must be done "necessarily and primarily for the benefit of the employer's business." Id., ¶¶ 17-21. Second, the court went on to discuss whether the activity was an "integral part" of a "principal activity." Id., ¶¶ 22-26. It concluded that an "integral part" meant an activity that is (1) closely related to the principal activity and (2) indispensable to its performance. Id., ¶¶ 26, 28-31. Using this two-step approach, the court concluded that the "donning and doffing" was compensable under the circumstances. Id., ¶ 37; but see Mitchell v. JCG Industries, Inc., 745 F.3d 837 (2014) (holding that the minimal time employees spent "donning and doffing" sanitary gear during bona fide meal breaks and at the beginning and end of each day was not work time that had to be compensated).

¶ 156 A few months after the Wisconsin Court of Appeals decided Tyson Foods, the Supreme Court of the United States decided Integrity Staffing Solutions, Inc. v. Busk, ___ U.S. ___, 135 S.Ct. 513, 190 L.Ed.2d 410 (2014).11 In Integrity Staffing, the Court addressed the issue of "whether the employees' time spent waiting to undergo and undergoing [a] security screening[] [was] compensable under the [Fair Labor Standards Act]." 135 S.Ct. at 515. The Court concluded that the "roughly 25 minutes" employees spent each day was not compensable work time. Id.

¶ 157 In reaching that conclusion, the Court reiterated that it "has consistently interpreted `the term "principal activity or activities" [to] embrac[e] all activities which are an integral and indispensable part of the principal activities.'" Id. at 517 (emphasis added) (quoting IBP, Inc. v. Alvarez, 546 U.S. 21, 29-30, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005)). Moreover, the Court clarified that "an activity is . . . integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities." Id. (emphasis added). Finally, the court unequivocally rejected other courts' reliance on a required-benefit analysis: "The [Ninth Circuit] erred by focusing on whether the employer required a particular activity. The integral and indispensable test is tied to the productive work that the employee is employed to perform." Id. at 519 (emphasis omitted). Additionally, the Court noted, "A test that turns on whether the activity is for the benefit of the employer is similarly overbroad."12 Id. The Court rejected the required-benefit approach because "[i]f the test could be satisfied merely by the fact that an employer required an activity, it would sweep into `principal activities'" the type of preliminary and postliminary activities that Congress worried would "bring about the financial ruin of many employers," would result in "windfall payments" to employees, and attempted to remedy when it enacted the Portal-to-Portal Act.13 Id. at 517, 519 (internal quotation marks omitted) (quoting 29 U.S.C. §§ 251(a)-(b)).

¶ 158 The "integral and indispensable" test is no cake walk for the party who seeks to establish its requisite elements; it imposes a tough standard. For example, in Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956), the Court addressed

350 U.S. at 248, 76 S.Ct. 330 (emphasis added). In answering that question, the Court looked to the particular circumstances of the battery plant, which included the fact that employees "customarily work with or near the various chemicals in the plant[, including] lead metal, lead oxide, lead sulphate, lead peroxide, and sulphuric acid." Id. at 249, 76 S.Ct. 330. There, the "very great" risks associated with the plant's conditions mandated "the removal of clothing and showering at the end of the work period." Id. at 250, 76 S.Ct. 330. In fact, the practice of clothing removal and showering "[had] become [such] a recognized part of industrial hygiene programs in the industry [that] the state law of Tennessee [required] facilities for th[at] purpose." Id.

¶ 159 Under those circumstances, the trial court found, and the Court agreed, that the employees' activities (changing clothes and showering) "[were] made necessary by the nature of the work performed;. . . and that they [were] so closely related to other duties performed by (petitioners') employees as to be an integral part thereof, and [were], therefore, included among the principal activities of said employees." Id. at 252, 76 S.Ct. 330 (emphasis added) (internal quotation marks omitted). In short, changing clothes and showering was an "integral and indispensable" part of the production of batteries because without it, employees would be exposed to chemicals and potentially poisoned. Id. at 249, 76 S.Ct. 330. To emphasize just how integral the changing and showering was under those particular circumstances, the Court concluded by saying, "[I]t would be difficult to conjure up an instance where changing clothes and showering are more clearly an integral and indispensable part of the principal activity of the employment than in the case of these employees." Id. at 256, 76 S.Ct. 330.

¶ 160 Mitchell v. King Packing Co., 350 U.S. 260, 76 S.Ct. 337, 100 L.Ed. 282 (1956), serves as another example of just how tough the "integral and indispensable" test is. In Mitchell, the Court considered "whether the knife-sharpening activities of the employees of respondent King Packing Co." were an "integral and indispensable" part of the principal activity of meatpacking. 350 U.S. at 261, 76 S.Ct. 337. Meatpacking includes the "slaughtering, butchering, dressing, and distributing" of meat. Id.

¶ 161 There, the Court noted that "[v]arious knives and electric saws [were] used on the butchering operation" and that "all of the knives as well as the saws must be `razor sharp' for the proper performance of the work." Id. at 262, 76 S.Ct. 337 (emphasis added). The knives needed to be "razor sharp" because "a dull knife would slow down production which is conducted on an assembly line basis, affect the appearance of the meat as well as the quality of the hides, cause waste and make for accidents." Id. The Court added, "[for] a knife to be of any practical value in a knife job[, it] has to be . . . sharp." Id. (emphasis added). Consequently, the Court held that the knife-sharpening activities were "an integral part of and indispensable to the various butchering activities for which [the employees] were principally employed." It did so because the knives needed to be "razor sharp" to perform the principal activity of slaughtering, butchering, dressing, and distributing the meat. Id. at 261, 262, 76 S.Ct. 337.

C. THE OUTCOME OF THE LEAD OPINION AND THE CONCURRING/DISSENTING OPINION CANNOT SURVIVE APPLICATION OF THE "INTEGRAL AND INDISPENSABLE" TEST.

¶ 162 Turning to the employees at the Beloit cannery, I conclude that the "donning and doffing" of the "whites" is not "integral and indispensable" to performance of a principal activity; therefore, it is not compensable. In this case, the "donning and doffing" of the "whites" by Hormel's employees is not an "intrinsic element" of canning food; moreover, an employee could easily dispense with the "donning and doffing" of the "whites" and still complete his or her principal activity of safely canning clean food.

¶ 163 As a result, the lead opinion's and the concurring/dissenting opinion's conclusion that the "donning and doffing" of the "whites" is "integral and indispensable" to a principal activity is incorrect. It is incorrect for two main reasons: (1) the lead opinion says that the applicable federal food, health, and safety regulations require Hormel to have its employees "don and doff" the "whites", but the regulations do not contain such a requirement; and (2) the lead opinion relies on and affirms the circuit court's analysis, but the circuit court applied the wrong test.14 I will discuss these two reasons in detail, and then I will provide two examples of when "donning and doffing" would be compensable.

1. The FDA and USDA Regulations Do Not Support The Lead Opinion's Conclusion.

¶ 164 To begin, the "donning and doffing" of the "whites" is not required by the applicable federal food, health, and safety regulations. There was abundant testimony regarding this point at trial:

(Emphasis added.) Similarly, the USDA regulations do not require "donning and doffing":

(Emphasis added.) After hearing all the testimony regarding the federal regulations, the circuit court even concluded that the federal regulations do not require employees to wear the "whites," do not specify where the "whites" have to be "donned," "doffed," or stored, and do not require captive shoes. Indeed, the circuit court concluded that "Hormel employees could wear street clothes at the Beloit facility and still comply with the USDA and FDA regulations." (Emphasis added.) In sum, compliance with the federal regulations under these circumstances is not—and cannot be—what makes the "donning and doffing" of the "whites" "integral and indispensable" to the employees' principal activity of canning food. The lead opinion nonetheless contorts these federal regulations into just such a conclusion.

2. The Lead Opinion Conflates The Required-Benefit Test With The "Integral and Indispensable" Test.

¶ 165 The lead opinion's reliance on the circuit court's "comprehensive decision holding in favor of the Union" is mistaken because the circuit court incorrectly applied the "integral and indispensable" test by repeatedly focusing on whether the "donning and doffing" was required by and benefitted Hormel. Lead op., ¶ 5. In other words, the lead opinion conflates the required-benefit test with the "integral and indispensable" test.

¶ 166 After discussing whether the "donning and doffing" of the "whites" was required by and benefitted the employer, the circuit court appeared to transition to analyzing and applying the "integral and indispensable" test. In fact, the heading of this section in the circuit court's opinion and order reads, "ARE THE ACTIVITIES CLOSELY RELATED TO AND INDISPENSABLE TO PERFORMANCE OF A PRINCIPAL ACTIVITY?" Moreover, the circuit court acknowledged that "[e]ach of the class members agreed that there was nothing essential about the clothes Hormel required them to wear in order to get their job done. Each of them agreed that they could probably perform each of the movements required by their job even if wearing street clothes." The circuit court went on to quote plant manager Scott Ramlo:

(Emphasis added.) Rather than applying the "integral and indispensable" test, however, the circuit court's analysis transformed into an analysis of the required-benefit test: "[t]he most important part of [Scott Ramlo's] answer was at the start when he admitted that wearing the whites and gear was required by Hormel." (Emphasis added.)

¶ 167 The circuit court's emphasis ("the most important part") on the fact that "donning and doffing" the "whites" was required by the employer shows that the circuit court mixed a required-benefit analysis into what was supposed to be an "integral and indispensable" analysis. In fact, the circuit court's analysis is littered with references to the fact that "donning and doffing" was required by and benefitted Hormel:

(Emphasis added.) These are just a handful of times the circuit court looked at what Hormel required and whether Hormel benefited rather than looking to whether the "donning and doffing" of the "whites" was "integral and indispensable" to the principal activity of canning food.15 The circuit court did not have the benefit of the Supreme Court of the United State's decision in Integrity Staffing as the circuit court's decision was issued prior to Integrity Staffing. However, this court did have such guidance. The lead opinion's choice to rely on the circuit court's "comprehensive decision holding in favor of the Union" rather than the Supreme Court's instruction in Integrity Staffing is curious.

D. ADDITIONALLY, THE TIME SPENT "DONNING AND DOFFING" THE "WHITES" DURING MEAL PERIODS IS NOT COMPENSABLE WORK TIME.

¶ 168 Related to the question of whether "donning and doffing" of the "whites" at the beginning and end of each work day is compensable, is the question of whether "donning and doffing" during the employees' 30-minute meal period is compensable. I have already concluded that the "donning and doffing" of the "whites" is not compensable because it fails the "integral and indispensable" test. However, I briefly comment on the lead opinion's and the concurring/dissenting opinion's analyses of this issue because I believe that neither can square their determinations that the "donning and doffing" of the "whites" at the beginning and end of the workday is compensable with their determinations that the exact same "donning and doffing" is not compensable when done over the lunch hour.

¶ 169 Most Hormel employees have a 30-minute unpaid lunch break. An employee may choose to go off his or her work premises to eat a meal. If an employee leaves, he or she is required to change out of his or her "whites" and then change back into the "whites" when he or she returns. Regardless of whether the employee leaves (and accordingly "dons and doffs") or stays on site, the employee is entitled only to 30 minutes.

¶ 170 Hormel's employees argue that they have been denied the "right under Wisconsin law to have a 30-minute lunch period free from duty in which the employee is free to leave the premises." The test for whether meal time "donning and doffing" is compensable is simple and familiar: meal time "donning and doffing" is compensable if it is "integral and indispensable" to an employee's principal activity.16

¶ 171 The lead opinion and the concurring/dissenting opinion believe that the "donning and doffing" of the "whites" is "integral and indispensable" to canning food and, therefore, compensable. Except, that is, when the "donning and doffing" occurs during the lunch hour instead of at the beginning and end of the work day. But the employees' principal activity has not changed; it is still canning food. And what is required to be "donned and doffed" has not changed; it is still the "whites." The only change is the time at which the employee "dons and doffs."

¶ 172 To say that "donning and doffing" of the "whites" is "integral and indispensable" when an employee arrives and leaves at the end of the day but is not "integral and indispensable" when an employee leaves and arrives at lunch is unsupported by the law. If the lead opinion and the concurring/dissenting opinion conclude (as they do) that the "donning and doffing" of the "whites" is so "integral and indispensable" to canning food at the start of the shift at the beginning of the day that it must be compensable, then they must also conclude that the "donning and doffing" of the "whites" is "integral and indispensable" to canning food at the start of the shift after the lunch period. The lead opinion and the concurring/dissenting opinion somehow do not. In doing so, the lead opinion and the concurring/dissenting opinion admit that the "donning and doffing" of the "whites" is not truly "integral and indispensable" to the employees' principal activity of canning food.

E. "DONNING AND DOFFING" IS SOMETIMES COMPENSABLE.

¶ 173 That the "donning and doffing" of the "whites" is not compensable under our specific factual circumstances becomes abundantly clear when compared to "donning and doffing" that is compensable under other circumstances.

¶ 174 For instance, some of Hormel's employees are part of a sanitation crew; these sanitation crew members "play a real critical part in cleaning the entire plant up top to bottom every night. . . ." Employees who work in sanitation wear different and additional clothing and equipment:

Hormel pays its sanitation workers to "don and doff" this additional clothing and equipment because "[the sanitation workers] really couldn't do their job without [it]. I mean safety and commonsense, everything says that they wouldn't be able to safely work out there with all those chemicals without this equipment." (Emphasis added.) Simply put, the sanitation crew's principal activity is sanitizing the plant, and sanitizing the plant necessitates contact with "very caustic or acidic" chemicals; therefore, the sanitation crew must wear protective gear in order to sanitize the plant with chemicals.17

¶ 175 Here is a second example. In addition to running a cannery, Hormel runs other types of food-related operations. In Algona, Iowa, Hormel runs a dry sausage operation, which primarily makes pepperonis.18 At trial, Francisco Velaquez, a resource and safety manager at Hormel, testified that pepperoni is a ready-to-eat meat product that must be produced in a ready-to-eat facility. For comparison, plants that produce ready-to-eat meat products are considered "high-risk operations" whereas canneries are considered "lower risk" because food product at a cannery goes through the 12-D cook or acidification processes. Because pepperonis are a high-risk, ready-to-eat meat product, employees at this type of facility must "don and doff" additional items on top of their "whites" to prevent different types of contamination (contamination that is not annihilated with a 12-D cook or acidification process).19

¶ 176 For instance, a high-risk, ready-to-eat meat facility is especially concerned with Listeria or Salmonella, which is often tracked into a plant by street shoes. To combat those risks, "[Hormel] ha[s] [its employees] change into these rubber boots. Then [the employees] have to go through something called a boot scrubber, and there [Hormel] appl[ies] quaternary ammonium" to reduce contamination. Additionally, employees "typically have plastic aprons that they put over their whites. . . . And then they have these things called sleeve guards that are plastic that go up to their elbows, and then they have rubber gloves that they wear that they tuck under their sleeve guards."

¶ 177 Employees at these high-risk, ready-to-eat meat facilities are paid for the time they spend "donning and doffing" their additional gear; that is, they are paid for the time it takes to put on, wash, and take off their boots as well as the time it takes to put on and take off their aprons, sleeve guards, and rubber gloves. The "donning and doffing" of this extra gear is compensable because it is "integral and indispensable" to producing high-risk, ready-to-eat meat products.

¶ 178 The above two examples help to illustrate exactly what the "integral and indispensable" test calls for. Namely, for the employer-required activity to be compensable, it must be an "intrinsic element" of the activity performed and "one with which the employee cannot dispense if he is to perform those activities." Integrity Staffing, 135 S.Ct. at 517. A sanitation crew member cannot dispense with his or her extra clothing and equipment due to the "very caustic or acidic" chemicals he or she is exposed to while performing his or her principal activities of cleaning and sanitizing. A ready-to-eat meat facility employee cannot dispense with his or her extra clothing and equipment due to the high-risk nature of certain types of contamination at a ready-to-eat meat facility. But a cannery employee at a "lower risk" facility can dispense with wearing "whites" and still safely produce clean food.

¶ 179 In sum, Hormel's own employees put it best when they testified, and the circuit court found that "there is nothing essential about the clothes Hormel required them to wear in order to get their job done." (Emphasis added.) I agree with Hormel's employees. The "donning and doffing" of the "whites" is not "integral and indispensable" to the Beloit employees' principal activity of canning food; therefore, the time spent "donning and doffing" the "whites" is not compensable.

III. WHAT THE LEAD OPINION DOES NOT DECIDE: THE DE MINIMIS NON CURAT LEX DOCTRINE.

¶ 180 I now turn to the second issue: whether the requirement for compensation for time spent "donning and doffing" would be obviated by the doctrine of de minimis non curat lex ("the law doesn't care about trifles"). Because I have concluded that the employees "donning and doffing" of the "whites" is not compensable, I need not consider whether the time spent "donning and doffing" is de minimis.

¶ 181 However, I write to point out that the lead opinion, while pretending to engage in a de minimis-like discussion, does not actually answer the question before us. Specifically, the lead opinion does not determine whether the de minimis doctrine applies in Wisconsin, does not explain what test or approach it used to reach its conclusion, and thus, does not provide any guidance for courts and parties moving forward. We grant review of cases only when "special and important reasons are presented" and when a decision will help "develop, clarify or harmonize the law." Wis. Stat. § 809.62(1r),(1r)(c). In choosing not to answer the question before this court, the lead opinion fails to help "develop, clarify or harmonize the law." As a result, while this case is decided by the lead opinion for these employees at this facility, the issue of whether the de minimis doctrine applies in Wisconsin and how a de minimis determination would be conducted lives on.20

¶ 182 The de minimis doctrine simply asks the following: should all "integral and indispensable" activities, including those that last a single second or a handful of seconds or minutes be recorded by and paid for by an employer? See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946) ("Split-second absurdities are not justified by the actualities of working conditions. . . ."). Or are there ever activities that take such a small, trivial amount of time that a court should not expect an employer to keep track of and compensate for this time? See JCG Industries, 745 F.3d at 842, 841 (noting that "[c]ommon sense has a place in adjudication" and commenting that "[o]ne reason to withhold a remedy is that the harm is small but measuring it for purposes of calculating a remedy would be difficult, time-consuming, and uncertain, hence not worthwhile given that smallness"); Lindow v. United States, 738 F.2d 1057, 1062 (9th Cir.1984) ("[C]ommon sense must be applied to the facts of each case."). The Supreme Court of the United States answered the de minimis question by holding that "[w]hen the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded." Anderson, 328 U.S. at 692, 66 S.Ct. 1187.

¶ 183 As a result, when a federal court determines that the time spent on an activity is compensable because it is "integral and indispensable," the court next determines whether that compensable time is rendered non-compensable by the de minimis doctrine. See id. at 693, 66 S.Ct. 1187; Lindow, 738 F.2d at 1062 ("As a general rule, employees cannot recover for otherwise compensable time if it is de minimis."). In contrast, when a federal court determines that the time spent on the activity is not "integral and indispensable," the court's analysis ends and no compensation is due. See Integrity Staffing, 135 S.Ct. at 515 (concluding that the activity was not "integral and indispensable" and, therefore, not proceeding to a de minimis analysis). We have never before determined whether we should take this same approach in Wisconsin.21 We were called upon to make that determination in this case.

¶ 184 Because the lead opinion concludes that the employees "donning and doffing" of the "whites" is compensable, it could have engaged in a full discussion of whether the de minimis doctrine applies in Wisconsin.22 But it did not. To quote the lead opinion,

Lead op., ¶ 98 (emphasis added).23 Why assume without deciding? The question was certified by the court of appeals, the parties spent roughly 17 pages of their respective briefs on the issue, and the parties addressed this issue during oral argument before this court. Perhaps the lead opinion chooses not to answer the question because it cannot reach its present outcome given what the law is.

¶ 185 The law is this. The Supreme Court of the United States first applied the de minimis doctrine in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). There, the employees alleged that their employers' method of calculating hours did not "accurately reflect all the time actually worked and that they were thereby deprived of" proper overtime compensation. Anderson, 328 U.S. at 684, 66 S.Ct. 1187. The employees wanted their walk time to and from their workstations as well as their "donning and doffing" of work clothing included in their work hours. Id. at 682-83, 66 S.Ct. 1187.

¶ 186 In resolving that question, the Court noted,

Id. at 692, 66 S.Ct. 1187 (emphasis added). Later in the opinion, the Court reiterated, "it is appropriate to apply a de minimis doctrine so that insubstantial and insignificant periods of time spent in preliminary activities need not be included in the statutory workweek." Id. at 693, 66 S.Ct. 1187 (emphasis added). The Anderson Court's focus was on time, specifically whether the activity took just "a few seconds or minutes." See also Lindow, 738 F.2d at 1062 ("An important factor in determining whether a claim is de minimis is the amount of daily time spent on the additional work.").

¶ 187 While making sure to explain that it is not deciding whether the de minimis doctrine applies in Wisconsin, the lead opinion nevertheless discusses the doctrine and pays lip service to Anderson by quoting its use of the word "trifle." But unsurprisingly the lead opinion chooses not to apply Anderson's test.24 Instead, the lead opinion cherry-picks one factor (not found in Anderson) in which to ground its conclusion.25 The lead opinion states,

Lead op., ¶ 102 (emphasis added).26

¶ 188 Hidden in the lead opinion's language is a conclusion that is at odds with the law: that 2.903 minutes is not de minimis. The lead opinion cannot state out-right that 2.903 minutes is not de minimis because it would be hard-pressed to reconcile that determination with the fact that Anderson designed the de minimis doctrine to preclude compensation when "the matter in issue concerne[d] only a few seconds or minutes of work." 328 U.S. at 692, 66 S.Ct. 1187 (emphasis added). Moreover, it cannot state outright that 2.903 minutes is not de minimis because it would have to face the fact that "[m]ost courts have found daily periods of approximately 10 minutes de minimis even though otherwise compensable." Lindow, 738 F.2d at 1062 (emphasis added) (holding that the 7 to 8 minutes the employees spent on a pre-shift activity in that case was de minimis and citing a litany of cases for the proposition that daily periods of 10 minutes or less are de minimis).

¶ 189 If the lead opinion were to actually answer the question of whether the de minimis doctrine is a part of Wisconsin law, then it would have to focus on—or at the very least discuss—the amount of daily time spent on "donning and doffing" (here, 2.903 minutes) and whether that time qualifies as just a few "seconds or minutes." The lead opinion tiptoes past this quagmire by sidestepping the question entirely.27 Consequently, the question is left unanswered and Wisconsinites are left wondering.

¶ 190 In sum, the lead opinion could have resolved the issue of whether the de minimis doctrine applies in Wisconsin, and it could have provided a workable test or approach for how to conduct a de minimis analysis. It chose not to. When we accept a case, we do so to help "develop, clarify, or harmonize the law." As such, the lead opinion owed the people of Wisconsin and the parties a full and thorough discussion on whether the de minimis doctrine applies in Wisconsin as well as a discussion on the proper method or approach for conducting a de minimis analysis. Because the lead opinion elects to leave today's question unanswered, it short-changes the people of Wisconsin.

IV. CONCLUSION

¶ 191 I cannot join the lead opinion because I believe it reaches the wrong conclusion as to whether the "donning and doffing" of the "whites" is "integral and indispensable" and reaches no determination as to whether the de minimis doctrine is a part of Wisconsin law or how a de minimis analysis is to be conducted in future cases.

¶ 192 For the reasons stated, I respectfully dissent.

¶ 193 I am authorized to state that Justice ANNETTE KINGSLAND ZIEGLER joins this dissent.

Table 1. Time (in minutes) to don and doff items and wash hands

      Activity           N          Median             Mean           Stdev
                               (In minutes)    (In minutes)    (In minutes)
  Doff Belt             30            0.062           0.077           0.049
  Doff Ear Plugs        45            0.033           0.040           0.020
  Doff Hair Net         53            0.081           0.084           0.027
  Doff Hard Hat         48            0.074           0.078           0.025
  Doff Safety Boots     49            0.244           0.215           0.126
  Doff Safety Glasses   41            0.058           0.058           0.023
  Doff Uniform Pants    49            0.180           0.191           0.095
  Doff Uniform Shirt    49            0.107           0.133           0.075
  Don Belt              29            0.279           0.266           0.151
  Don Ear Plugs         46            0.116           0.127           0.044
  Don Hair Net          54            0.163           0.166           0.044
  Don Hard Hat          48            0.099           0.100           0.040
  Don Safety Boots      48            0.438           0.436           0.153
  Don Safety Glasses    42            0.090           0.095           0.039
  Don Uniform Pants     47            0.322           0.359           0.155
  Don Uniform Shirt     47            0.313           0.320           0.061
  Wait to Hand Wash     42            0.000           0.000           0.000
  Hand Wash             42            0.244           0.225           0.170

Table 2. Time (in seconds) to don and doff items and wash hands

      Activity           N           Median            Mean           Stdev
                               (In seconds)    (In seconds)    (In seconds)

  Doff Belt             30            3.720           4.620           2.940
  Doff Ear Plugs        45            1.980           2.400           1.200
  Doff Hair Net         53            4.860           5.040           1.620
  Doff Hard Hat         48            4.440           4.680           1.500
  Doff Safety Boots     49           14.640          12.900           7.560
  Doff Safety Glasses   41            3.480           3.480           1.380
  Doff Uniform Pants    49           10.800          11.460           5.700
  Doff Uniform Shirt    49            6.420           7.980           4.500
  Don Belt              29           16.740          15.960           9.060
  Don Ear Plugs         46            6.960           7.620           2.640
  Don Hair Net          54            9.780           9.960           2.640
  Don Hard Hat          48            5.940           6.000           2.400
  Don Safety Boots      48           26.280          26.160           9.180
  Don Safety Glasses    42            5.400           5.700           2.340
  Don Uniform Pants     47           19.320          21.540           9.300
  Don Uniform Shirt     47           18.780          19.200           3.660
  Wait to Hand Wash     42            0.000           0.000           0.000
  Hand Wash             42           14.640          13.500          10.200

b. The total time it took employees in different departments at Hormel facility in Beloit, Wisconsin to walk various distances at the start-of-shift and end-of-shift are presented in Table 3 below:

Table 3. Time (in minutes) to walk various distances at the start-of-shift and end-of-shift

  Clock        Area                  Start of   End of
  Name                               Shift      Shift

  SF-255   Grinding                  1.141      0.606
  SF-255   Maintenance               0.461      0.436
  SF-255   Pre-Cook                  3.027      0.628
  SF-255   Receiving                 1.573      0.613
  SF-255   Store Room                2.537      0.546
  SF-240   Canning                   2.016      1.550
  SF-240   Product Prep/Spice Room   1.927      1.574
  SF-240   QC                        1.333      1.538
  SF-240   Retort                    1.937      1.515
  SF-240   Sanitation                2.326      1.529
  SF-291   Depal                     2.650      0.633
  SF-291   Packaging                 2.129      0.645
  SF-291   Salsa                     1.033      0.600
  SF-291   Shipping                  1.653      0.518
  SF-291   Stork                     2.332      0.536

c. The total time it took employees in different departments at Hormel facility in Beloit, Wisconsin to don and doff uniform pants, uniform shirt, belt, safety boots, hardhat, earplugs, hairnet, and safety glasses; wash hands; and walk various distances at the start-of-shift and end-of-shift are presented in Table 4 below:

Table 4. Time (in minutes) to don, doff, wash, and walk various distances at the start-of-shift and end-of-shift

  Clock    Number of                                 Total
                               Area              Start-End
  Name     Employees                             of Shift

  SF-255      18       Grinding                     4.651
  SF-255      50       Maintenance                  3.801
  SF-255       7       Pre-Cook                     6.560
  SF-255       5       Receiving                    5.091
  SF-255       6       Store Room                   5.988
  SF-240       8       Canning                      6.471
  SF-240      33       Product Prep/Spice Room      6.406
  SF-240      13       QC                           5.776

  Clock    Number of                                 Total
                               Area              Start-End
  Name     Employees                             of Shift

  SF-240       5       Retort                       6.357
  SF-240      19       Sanitation                   6.760
  SF-291       5       Depal                        6.187
  SF-291      20       Packaging                    5.679
  SF-291      16       Salsa                        4.538
  SF-291       6       Shipping                     5.075
  SF-291       9       Stork                        5.773

37. This completes my work on the above case. If new or additional data become available, I reserve the right to amend these findings.

VERIFICATION

Personally appeared before me, Lissette Garcia a Notary Public in and for said State and County, Jeffrey E. Fernandez, the within named declarant, with whom I am personally acquainted (or proved to me on the basis of satisfactory evidence), and who acknowledged that he executed the foregoing instrument for the purposes therein contained.

WITNESS my hand and seal at office, on this 19, day of April, 2012.

Notary Public My Commission Expires: Feb. 28, 2014