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Tick Tock, Tick Tock — How Can A Few Minutes Spent Changing Clothes Cost A Company $5 Million?
Can you answer the following questions?
  1. Are your employees required to don and doff clothing or equipment to perform their job?
  2. How many minutes does this require before or after their shift?
  3. Are they paid for that time?
As outlined in last month’s newsletter, one of the goals of the U.S. Department of Labor’s (DOL) vision of a "good job" includes jobs that assure workers are paid their wages and overtime. Recently, several lawsuits have been filed under Wisconsin’s wage and hour laws claiming employees should have been paid for time spent changing clothes. Union and non-union companies should audit pay practices to determine if there is any liability.
The cause of these recent state law claims is the Seventh Circuit Court of Appeals’ recent ruling that the provision of federal law which eliminates the requirement to pay for donning and doffing time for union employees does not preempt Wisconsin’s law, which may require employees to be paid for donning and doffing time.
This is a perfect issue to cause employees to file a class action for back pay or for unions to attempt to organize non-union employees! The ramifications can be staggering. Oscar Mayer in Madison has just lost a case involving clothes changing time under Wisconsin law and it cost the company approximately $5 million.
Employers should review the following issues:
  1. When is an employer required to pay employees for donning and doffing time?
  2. When is time considered de minimis?
  3. When must an employer pay for lunch or rest breaks?
  4. What is current law on “rounding” time?
  5. How could a union use this issue to secure more pay for its unionized employees
  6. How could a union use this issue to organize employees?
Watch these cases very carefully because they may give you the answers to your questions.
Rising Class and Collective Lawsuits in Employment
The use of class and collective lawsuits in employment-related litigation is on the rise as employees seek proper pay and fair treatment while employers seek to defend their policies and practices, and all indications suggest that this trend will continue, as evidenced by the Oscar Mayer case discussed above.
Class and collective actions are legal procedures that permit groups of individuals to pre-sent common claims to courts. These lawsuits are generally less expensive and more efficient for litigants to maintain or defend than are multiple individual cases; they conserve judicial resources by allowing common questions to be decided once, instead of many times; they avoid inconsistent results regarding similar claims; and they provide clear expectations regarding future rights and obligations.
Wage and Hour Collective Actions
The significant increase in collective actions has involved many different types of claims, including challenges to the classification of employees as exempt from the Fair Labor Standards Act’s (FLSA) overtime requirements (especially pursuant to the administrative, executive, or professional exemptions), allegations of unpaid “off-the-clock” work, so-called “donning and doffing” claims (regarding prework and postwork activities), and claims for compensable “waiting time.” Why has there been a significant increase in collective actions? The primary reason is knowledge: employees (and their lawyers) are becoming better informed as to their rights, particularly when policies and practices affect groups of employees.
Employment Discrimination Class Actions
With its 1.5 million members, Dukes v. Wal-Mart Stores Inc. is the largest sex-discrimination class action in U.S. history. The Ninth Circuit reviewed this case for the second time and decided against Wal-Mart. The underlying issues are important and informative and the U.S. Supreme Court has recently taken the case for its review and decision. The Supreme Court will determine if certification of this case is proper.
The class members in Dukes are all women who hold or have held a range of salaried and hourly positions at more than 3,400 Wal-Mart stores nationwide. The plaintiffs argue that Wal-Mart’s policy of allowing local managers to make decentralized pay and promotion decisions, coupled with the strong influence of the corporate office in employment decisions, results in the underrepresentation of women in upper management and illustrates Wal-Mart’s discriminatory failure to promote qualified women. The plaintiffs argue that, although two-thirds of Wal-Mart employees are women, only one-third of upper-level positions are held by women. Further, the plaintiffs argue that women are paid less than men and have to work longer before receiving promotions than do their male counterparts.
Wal-Mart argues that the allegedly discriminatory actions involve thousands of independent decisions made by managers at the local level, and, therefore, the class members have not been exposed to a uniform policy or single cause for the alleged discrimination. Wal-Mart argues that the plaintiffs cannot satisfy the commonality or typicality requirements under the rules by simply attaching a single label to the divergent allegations serving as the basis for their claims of being mistreated by the company without also proving a tainted, uniform policy. Wal-Mart further argues that the six named plaintiffs are dissimilar in their employment and alleged injuries and are alike only as to their gender.
DOL’s Goal of Income Equality
Another goal in the DOL’s vision of a "good job" includes jobs that increase workers' incomes and narrow wage and income inequality. Recently, according to the DOL, Green Bay Dressed Beef LLC, a Wisconsin meatpacking company, agreed to pay $1.65 million to settle a sex-discrimination lawsuit accusing it of rejecting 970 female applicants over a two-year period. The money will cover back pay, benefits and interest he allegations involved women applying for positions as general laborers in 2006 and 2007. The issues was not that the company didn't hire women they didn't hire enough women. Also, this settlement wasn’t even the result of a lawsuit; DOL officials examined the company's hiring records as part of a standard investigation of federal contractors and found the discrepancy.
If you have any questions about these, or other employment and labor law matters, please e-mail me at or call me at 414-423-1330.
Posted 02/07/2011
If you have any questions or comments, please contact me at 414-423-1330 or via e-mail at:
Thomas P. Krukowski, Esq.
Krukowski & Costello, S.C.
Legislative Partner

Krukowski &
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Margie Harvey

Margie Harvey, SPHR
Miles Kimball Company 
250 City Center
Oshkosh, WI  54906
Ph: 920.232.6409
Fx: 920.231.1247   

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