By: Joseph D. Guarino and Jesse G. Pauker

The Supreme Court has once again been asked to address the question of whether time spent by employees donning and doffing has to be compensated. On October 29, 2010, the Court received a petition filed by Kraft Food Global, Inc., asking it to review the Seventh Circuit’s ruling in Spoerle v. Kraft Foods Global, Inc., that Section 203(o) of Fair Labor Standards Act (“FLSA”), allowing unions and employers to agree to forgo pay for donning and doffing, does not preempt state law. 

Section 203(o) of the FLSA provides that time spent putting on (“donning”) or taking off (“doffing”) integral and indispensable safety gear is generally regarded as “working time” and thus must be paid; however, the FLSA allows labor and management to vary that general rule through the collective bargaining process so that the workers get paid a higher hourly rate, in exchange for agreeing to exclude some time as compensable.

In Spoerle, over the previous 25 years the parties’ Collective Bargaining Agreement (“CBA”) had expressly excluded donning and doffing from hours worked in exchange for a higher hourly wage. The employees disagreed with the terms of the CBA and wanted not only to be paid for time spent donning and doffing but also to be paid for that time at the same increased hourly rate stipulated to in the CBA. While Wisconsin state law requires time spent donning and doffing be compensated at or above minimum wage and that this time counts towards the accumulation of overtime, it is silent on the issue of whether parties may collectively bargain to alter the State requirements similar to what is allowed by Section 203(o) of the FLSA. The Court of Appeals held, that because Wisconsin’s own wage-and-hour legislation lacked any equivalent to Section 203(o), the donning and doffing time counted as work time (and overtime) under state law.

The Court of Appeals relied upon Section 218(a) of the FLSA, or the “saving clause”, which provides that no provision of the Act “shall excuse noncompliance” with any state law that establishes a higher minimum wage or a lower overtime threshold.  According to the Court, management and labor acting jointly through a CBA could not override state substantive law, thus the existing state statute required the court to disregard the CBA where the parties attempted to avoid the obligations imposed by state wage and hour law.

According to Kraft, by enacting Section 203(o) of the FLSA, Congress believed that allowing labor and management to alter donning and doffing compensation through collective bargaining was in the best interest of the employees and that any such agreement should be enforceable despite any potential contradictory State law, consistent with Congress’s mandate that collective bargaining be governed exclusively by federal law. Kraft believes the Seventh Circuit’s opinion is inconsistent with Supreme Court precedent and misinterprets federal law

Although Kraft’s petition states that if left to stand, the Seventh Circuit’s opinion “will undermine the very collective bargaining process Congress intended to protect and cause other harms that Congress sought to avoid,” it will also create great potential exposure for employers to donning and doffing claims under state law. Unlike federal law, i.e. Section 203(o) of the FLSA, most state laws and regulations lack any defenses to donning and doffing claims.