ROCHELL MITCHELL, et al., individually and on behalf of all others similarly situated, Plaintiffs-Appellants,
JCG INDUSTRIES, INC., and KOCH FOODS, INC., Defendants-Appellees
Argued January 7, 2014.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 C 6847 -- Robert M. Dow, Jr., Judge.
For Rochell Mitchell, AUDREY N. VEASLEY, individually, and on behalf of all others similarly situated, Plaintiffs - Appellants: Jac A. Cotiguala, Chicago, IL; James B. Zouras, Stephan Zouras, Llp, Chicago, IL.
For Jcg Industries, Koch Foods, Defendants - Appellees: Stephen Novack, Novack & Macey Llp, Chicago, IL.
For State of Illinois, Amicus Curiae: Jane E. Notz, Office of The Attorney General, Chicago, IL.
Before WOOD, Chief Judge, and POSNER and KANNE, Circuit Judges.
Posner, Circuit Judge.
The plaintiffs are employed in a poultry processing plant in Chicago owned by the defendants, affiliated corporations tat we'll call " the employer." The plaintiffs advance two claims: a claim by the two plaintiffs, suing jointly, that the employer has violated an overtime provision of the Fair Labor Standards Act, 29 U.S.C. § § 201 et seq.; and a class action claim (supplemental to the federal claim, see 28 U.S.C. § 1367(a)), made by the plaintiffs as the representatives of the class, that the employer's conduct violates an overtime provision of the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq. The federal law does not preempt the state law if the latter is more generous to employees, see 29 U.S.C. § 218(a); Spoerle v. Kraft Foods Global, Inc., 614 F.3d 427, 428-30 (7th Cir. 2010), so even if we decide that the employer has not violated the federal law, we can find that it has violated the state law. The district judge granted summary judgment in favor of the employer on both claims, and having done so dismissed the plaintiffs' motion to certify a class with respect to the state-law claim. One might have expected the employer to press for certification, in order to preclude a further identical suit by others of its employees, see Randall v. Rolls-Royce Corp., 637 F.3d 818, 820-21 (7th Cir. 2011); but it did not.
The employees in question are line workers represented by a union--Chicago Joint Board, RWDSU (Retail, Whole-sale and Department Store Union), http://rwdsu.info/about.htm (visited March 13, 2013, as were the other websites cited in this opinion)--that has a collective bargaining agreement with the employer. The line workers stand next to a conveyor belt and each worker performs various operations on chicken carcasses, such as deboning and evisceration, as each carcass, carried on the moving belt, arrives in front of him or her. For a comprehensive description of the process, see Tony Ashdown, " Poultry Processing," www.ilo.org/safework_bookshelf/english?content& nd=8571 70833; see also Kimberly Kindy, " Fight Picks Up Over Proposal to Speed Poultry-Processing Lines," Wash. Post, Feb. 28, 2014, p. A3.
For obvious reasons, " rigid sanitation requirements must be met." Ashdown, supra. So before beginning work in the morning the line workers are required to put on a sterilized jacket, plastic apron, cut-resistant gloves, plastic sleeves, earplugs, and a hairnet. They are required to remove this sanitary gear at the start of their half-hour lunch break and put it back on before returning to work. They are also told to wash their hands before eating, but given the nature of poultry processing
would doubtless do it without being told to. The principal issue in the case, and the only one presented by the federal claim, is whether the time spent in changing during the lunch break is worktime that must be compensated. It's called " changing," so we'll call it that too, but the term is imprecise. The workers do not change out of their clothes; they place the sanitary gear on top of their street clothes, and remove it.
The time the workers spend changing before and after eating lunch is time taken out of their lunch break rather than out of the four-hour shifts that precede and follow it. It thus leaves them with less time for actually eating. But compression of their eating time is not a concern that motivates the workers' suit; that it is not implies of course that the amount of time consumed in changing is indeed slight, as is further implied by the fact that the plaintiffs don't argue that the meal break is not a bona fide meal break. Were it not bona fide, they would be entitled to be paid for all thirty minutes. Since it's conceded to be bona fide, it is not work-time, 29 C.F.R. § 785.19(a) ( " bona fide meal periods are not worktime" )--that is, time that the employer is required to compensate employees for even if (as in this case) there is a collective bargaining agreement between the employer and the employees' union and the agreement does not require such compensation. 29 C.F.R. § 778.223. The plaintiffs argue nevertheless that federal and state law requires that this changing time be compensated--and at 1.5 times the employees' regular wage because it is on top of their 40-hour weekly worktime and thus is overtime--even though the collective bargaining agreement makes the entire meal period noncompensable and the Fair Labor Standards Act does not require that meal periods be compensated.
The Act further excludes from the time during which an employee is entitled to be compensated at the minimum hourly wage (or, if it is overtime work, at 150 percent of the employee's regular hourly wage) " any time spent in changing clothes at the beginning or end of each workday which was excluded from measured working time... by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee." 29 U.S.C. § 203( o ). The phrase we've italicized is the bone of contention over the applicability of section 203( o ) to this case. The lunch break does not take place at the beginning or end of the period in which the employees are at the plant, and the plaintiffs contend that only that period is the " workday."
An initial doubt is whether that interpretation can possibly be correct given that many workers work (whether sometimes or only) at night. Nightworkers are called " shift workers" and are estimated to comprise 20 percent of the American workforce. See Sloan Work and Family Research Network, " Questions and Answers About Shift Work," http://workfamily.sas.upenn.edu/sites/workfamily.sas. upenn.edu/files/imported/pdfs/shiftwork.pdf. A busy factory might have three eight-hour shifts, such as 8 a.m. to 4 p.m., 4 p.m. to midnight, and midnight to 8 a.m. These workers have a " workday," but it begins or ends at night (sometimes both). It would be called their " worknight" were there such a word, but because there isn't, " workday" has acquired two meanings: a day on which work is performed, and " the period of time in a day during which work is performed." " Workday," Merriam-Webster, www.merriam-webster.com/dictionary/workday. Workers given a half-hour lunch or other meal break from work are in effect working two four-hour workdays in an eight-and-a-half-hour period.
It would make no practical sense to draw the distinction urged by the plaintiffs. An eight-hour workday is standard. If the job requires changing at the beginning and end of the workday, and the time spent changing has to be compensated, the eight-hour workday becomes an eight-hour some-minutes workday and so the employer has to pay overtime. Since changing time isn't working time, a union may decide not to press the employer to pay the workers for that time. That forbearance is likely to be mutually attractive because it avoids the bother of having to keep track of how long the changing takes (and it will differ for each worker) in order to determine what each worker is owed for that time. Hence the optional exemption in section 203( o ).
If as we believe " workday" includes " worknight," it may also include four-hour shifts separated by meal breaks. It is true that a regulation defines " workday" to mean, " in general, the period between the commencement and completion on the same workday of an employee's principal activity or activities." 29 C.F.R. § 790.6(b). But the qualifying phrase " in general" (paraphrased as " generally" in IBP, Inc. v. Alvarez, 546 U.S. 21, 29, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005)) allows room for an exception; and there is compelling reason to recognize an exception in this case. (It is noteworthy that section 203( o ) does not mention meal breaks, hence does not consider the effect they may have on a practical definition of " workday." ) The identical considerations attend payment for time changing at the beginning and end of a meal break as at the beginning and end of either a conventional " workday" or the lexicographically challenged " worknight."
Still another reason to interpret " workday" in this manner is that the Fair Labor Standards Act does not require employers to provide meal breaks at all. Whether to provide them is left up to collective bargaining if as in this case the workplace is unionized. And if they are provided, then as long as they're " bona fide," the time they take doesn't have to be compensated. 29 C.F.R. § 785.19. The regulation gives, as an example of a meal break that is not bona fide, when " a factory worker who is required to be at his machine is working while eating." The plaintiffs in this case do not argue that their lunch break is not bona fide.
As the Supreme Court pointed out recently in a related context, " simply put, [section 203( o )] provides that the compensability of time spent changing clothes or washing is a subject appropriately committed to collective bargaining." Sandifer v. U.S. Steel Corp., 134 S.Ct. 870, 876, 187 L.Ed.2d 729 (2014). To interpret section 203( o ) narrowly disserves the interest of workers by narrowing the scope of collective bargaining and, as in this case, setting a group of workers against their union. There are good practical reasons why the union in this case did not negotiate for making the time compensable. To determine how much overtime pay was owed for changing during the lunch break, the employer would have to keep tabs on how long it takes each employee to change. Unless the employer both fixed a rigid outer limit for time spent changing and monitored compliance with that limit, employees would have an incentive to dawdle at changing in order to increase their wage--which remember is an overtime wage.
These complications would be avoided if time spent during the meal break in actually eating also had to be compensated. For then the employer would know he had to pay every employee one-half hour of overtime wage in addition to eight hours of the employee's regular wage. But we
know that meal time does not have to be compensated. On the basis of the regulation cited earlier that excludes bona fide meal periods from worktime for which workers are required to be paid, the Fourth Circuit has held in a case indistinguishable from this one that " the time [employees] spend during their lunch breaks donning and doffing a few items [i.e., changing clothes], washing, and walking to and from the cafeteria... is non-compensable... because it is part of a bona fide meal period, see 29 C.F.R. § 785.19..., and, in the alternative, de minimis." Sepulveda v. Allen Family Foods, Inc., 591 F.3d 209, 216 n. 4 (4th Cir. 2009).
Sepulveda actually offers two grounds alternative to our interpretation of " workday" for excluding the donning and doffing time in this case from the overtime provision of the Fair Labor Standards Act. We have been assuming thus far that that time is expended at the beginning and end of the (four-hour) workday. But in an equally valid sense it is expended during the lunch break itself. For the exclusion of mealtime from worktime is not exclusion of just the time spent eating--it is the entire " meal period," which we know is 30 minutes. It is excluded as long as it is bona fide, and, as we said, the plaintiffs don't deny that the lunch break at issue in this case is bona fide. If so, all 30 minutes, including changing time, are excluded from worktime and therefore need not be compensated.
The Sepulveda opinion's other alternative ground for affirmance is unrelated to the meaning of " workday" or even of " meal periods." This is the familiar legal doctrine de minimis non curat lex --the law doesn't care about trifles (the punchier version is aquila non capit muscas --an eagle doesn't catch flies). The doctrine figured in our opinion in Sandifer v. U.S. Steel Corp., 678 F.3d 590, 593 (7th Cir. 2012), affirmed, 134 S.Ct. 870, 187 L.Ed.2d 729 (2014). The issue was whether the exemption permitted by section 203( o ) if agreed to by the parties to a collective bargaining agreement was vitiated by the fact that, in addition to putting on and taking off clothes, the workers had to put on and take off protective equipment, which is not clothing and so is not within the scope of the exemption. Quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), we said that " split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act. It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved." 678 F.3d at 593.
That remark was consistent with the suggestion in Hessel v. O'Hearn, 977 F.2d 299, 304 (7th Cir. 1992), that " the maxim de minimis non curat lex is often, perhaps typically, used... to denote types of harm, often but not always trivial, for which the courts do not think a legal remedy should be provided." One 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. It is inconceivable that " a substantial measure" of the poultry workers' " time and effort" is consumed in changing during the lunch break. The plaintiffs say it takes 10-15 minutes during the lunch break for them to change out of and then into the protective clothing; the company says 2-3 minutes. These time estimates do not include time spent walking to and from the lunch room; the plaintiffs' statement of facts limits the 10-15 minute estimate to the two clothing changes required during the lunch break.
The district judge did not opine on how long the donning and doffing take, a question difficult to answer in the usual way of judicial fact determination. The plaintiffs would testify that it takes 10 to 15 minutes, the employer that it takes only 2 to 3 minutes, and how would a judge or jury know who was telling the truth? The plaintiffs could be filmed changing, but their incentive would be to dawdle; the company could doubtless find a few speed demons ...