                                   Cite as 2016 Ark. 222

                SUPREME COURT OF ARKANSAS
                                      No.   CV-15-966

GERBER PRODUCTS COMPANY                          Opinion Delivered   May 26, 2016
D/B/A NESTLÀ INFANT NUTRITION
D/B/A NESTLÀ NUTRITION USA                       APPEAL FROM THE SEBASTIAN
D/B/A NESTLÀ NUTRITION USA–                      COUNTY CIRCUIT COURT
INFANT NUTRITION D/B/A NESTLÀ                    [NO. CV-2012-715]
NUTRITION USA–PERFORMANCE
NUTRITION                                        HONORABLE JAMES O. COX,
                     APPELLANT                   JUDGE

V.


DAVID HEWITT II ET AL.,
INDIVIDUALLY AND ON BEHALF OF
OTHERS SIMILARLY SITUATED
                        APPELLEES                AFFIRMED.


                           KAREN R. BAKER, Associate Justice

       Appellant, Gerber Products Company d/b/a NestlÁ Infant Nutrition d/b/a NestlÁ

Nutrition USA d/b/a NestlÁ Nutrition USA-Infant Nutrition d/b/a NestlÁ Nutrition

USA-Performance Nutrition (“Gerber”) appeals the Sebastian County Circuit Court’s January

23, 2015 order granting partial summary judgment in favor of appellees in their case alleging

Gerber’s liability for failure to pay certain overtime wages in violation of the Arkansas

Minimum Wage Act (“AMWA”), Arkansas Code Annotated sections 11-4-201 et seq. (Repl.

2012 & Supp. 2015).

       Appellees are employed by Gerber at its baby food processing and manufacturing

facility located in Fort Smith, Arkansas (“employees”). On June 6, 2012, the employees filed
                                    Cite as 2016 Ark. 222

a class action complaint against Gerber in the Sebastian County Circuit Court.1 The

employees sought relief from Gerber’s custom and practice of not fully compensating its

employees for all the time the employees spent working at the facility, in violation of the

AMWA. Specifically, the employees alleged that Gerber failed to compensate the employees

for their time spent donning and doffing clothing and protective gear, sanitizing clothing and

equipment, washing their hands, and walking to and from their work stations.2 The

employees asserted that these activities were necessary and indispensable to their principal

work, but the employees were not compensated. This action was brought on behalf of hourly

employees who are nonexempt from the overtime requirements of the AMWA and who

were, are, or will be employed by Gerber at any time within three years prior to the filing of

the complaint through the date of final disposition of the action, and who were, are, or will

be required by Gerber to perform donning and doffing activities without compensation. The

employees alleged the following facts regarding their tasks prior to beginning their shifts: upon

arrival, the employees walk through an electronic turnstile which is activated by the

employees swiping their security cards; the security turnstile records the time when the

employee swipes the card; after going through the turnstile, the employees are required to

walk to the locker rooms and change into the uniforms supplied by Gerber and to change into

       1
         Patrick Murray, manager of the Fort Smith facility, was later added as a defendant.
However, the August 4, 2015 final judgment states that the employees voluntarily dismissed
their claims against Murray with prejudice.
       2
        Additionally, the employees alleged that they were periodically required to work
through their lunch breaks without compensation; this claim was dismissed by the circuit
court’s November 6, 2014 order. The employees’ second cause of action was based on unjust
enrichment; this claim was also dismissed by the circuit court’s November 6, 2014 order.
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shoes that are required to be kept at the facility; after changing into their uniforms, the

employees are required to use a lint roller on their clothing, don protective gear such as

hairnets, beard nets, ear plugs, and bump caps, and wash their hands; the employees are then

required to walk a significant distance to clock in. At the completion of their shifts, the

employees are required to clock out prior to doffing the protective clothing. The employees

alleged that as a result of the mandatory donning and doffing activities, they were frequently

required to work in excess of forty hours in a workweek without overtime compensation at

a rate of at least one and a half times their regular rate of pay.3

       In August 2014, both parties filed motions for summary judgment. The employees

argued that there was no genuine issue of material fact that Gerber did not pay the employees

for their time spent donning, doffing, washing, walking, and waiting. To support its motion

for summary judgment, Gerber relied on collective-bargaining agreements between Gerber

and Lodge 260 of the International Association of Machinists and Aerospace Workers, AFL-

CIO (“Union”), which represented the employees during the negotiation process. During

the 2010 labor negotiations, the Union proposed an amendment to Article 11.3 of the

collective-bargaining agreement to require Gerber to compensate the employees for “18

minutes per day for donning and doffing.” However, this request was removed from the

2010–2013 collective-bargaining agreement and the time spent donning and doffing was



       3
         Gerber, on two separate occasions, attempted to remove this case to the United States
District Court for the Western District of Arkansas. On November 6, 2012, and October 28,
2013, the district court entered orders granting the employees’ motion to remand the case to
the Sebastian County Circuit Court.
                                                3
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treated as noncompensable. In 2013, the Union requested compensation for “30 minutes per

day for donning and doffing.” The 2013–2016 collective bargaining agreement was ratified

and included a provision treating donning and doffing time as compensable. Article 6.13 of

the 2013–2016 collective-bargaining agreement states as follows:

       The well-known custom and practice at this Fort Smith facility has for years been that
       time spent by employees donning and doffing clothes, shoes and various protective
       gear, and time spent performing related preparation or concluding activities like
       washing hands, linting off and walking to and from a work station (all activities
       referred to collectively in this Section as “Donning/Doffing”), are treated as non-
       compensable time. Under the immediately prior collective bargaining contract dated
       April 26, 2010, the Company and the Union agreed that time spent on
       Donning/Doffing was to be treated as non-compensable for the term of the contract.
       In the 2010 labor contract negotiations, the parties expressly bargained over various
       economic proposals of the Union, specifically including the issue of possibly treating
       Donning/Doffing time as compensable time, and the issue of increasing employees’
       base wage rates. Ultimately the Company agreed to grant increases to the base wage
       rates, but denied the Union’s proposal to begin treating Donning/Doffing time as
       compensable. As a result of that bargaining, the past practice of treating
       Donning/Doffing time as non-compensable continued into and during the 2010
       agreement.

       Starting as soon as practicable, but no longer than ninety (90) days after the ratification
       of the 2013 labor agreement, the Company will permit Donning/Doffing activities to
       be performed on regular paid time, both at the front and back end of an employee’s
       shift.

       Both parties’ motions for summary judgment were initially denied. However, on

November 3, 2014, a hearing was held on the cross-motions for summary judgment, and the

circuit court orally announced from the bench that it was changing its earlier order in favor

of the employees. On January 23, 2015, the circuit court entered a written order granting the

employees’ motion for partial summary judgment as to Gerber’s liability for failure to pay

certain overtime wages. Specifically, the circuit court found that the AMWA requires Gerber


                                                4
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to “treat the time required by employees to complete the mandatory donning and doffing

activities at issue in this lawsuit as compensable work time, notwithstanding any contrary

custom or practice under a collective bargaining agreement applicable to those employees or

any express agreement.” Further, the circuit court found that the AMWA does not

incorporate the Federal Labor Standards Act (“FLSA”) 203(o) exception for donning and

doffing. The circuit court specifically found as follows:

       1.     Plaintiffs’ Motion for Partial Summary Judgment is granted in part, as to
              [Gerber’s] liability for failure to pay certain overtime wages. The Court
              concludes that the Arkansas Minimum Wage Act (“AMWA”) requires that the
              employer, [Gerber], treat the time required by employees to complete the
              mandatory Donning and Doffing activities at issue in this lawsuit as
              compensable work time, notwithstanding any contrary custom or practice
              under a collective bargaining agreement applicable to those employees or any
              express agreement. The Arkansas Minimum Wage Act does not incorporate the
              federal 203(o) [exception] for clothes changing time in unionized facilities.
              There is no genuine issue of material fact that Gerber employed 4 or more
              individuals and that the class members worked more than 40 hours in one or
              more workweeks. Gerber did not treat the mandatory Donning and Doffing
              activities as compensable work time, and thereby violated the AMWA by
              failing to pay overtime as required by the Act.

              a.     “Donning” includes changing from personal clothes and shoes into the
                     Company-supplied uniform pants and shirt, and work shoes or
                     (protective shoe covers), putting on the required personal protective
                     equipment–namely, a hairnet, a beard net if applicable, safety glasses,
                     hearing protection and a bump cap (collectively described as
                     “PPE”)–washing hands and lint rolling one’s clothes.

              b.     Doffing” includes changing out of the uniform pants and shirt and work
                     shoes (or protective shoe covers) and into personal clothes and shoes,
                     and removing the PPE.

       2.     Because the time required to perform the Donning and Doffing activities is
              deemed by the Court to be compensable work time, certain walking and
              waiting time was compensable as well. This includes: a) the employees’
              post-Donning walking time from areas where the employees completed

                                              5
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              Donning activities, to places where employees reported for duty, and b) the
              pre-Doffing walking time from time clocks where employees clocked out, to
              the places they performed their Doffing activities.

       ....

       4.     [Gerber’s] Motion for Summary Judgment is reconsidered, and is denied. As
              discussed above, the AMWA requires employers to pay employees for all hours
              that employees are suffered or permitted to work. The mandatory Donning and
              Doffing Activities at Gerber’s Fort Smith Plant are work under the AMWA.
              There is no genuine dispute that time spent by class members on Donning and
              Doffing activities was historically treated as non-compensable time pursuant to
              a custom and practice under the collective bargaining agreements in place
              between Gerber and the Union representing the class members. Nevertheless,
              the Court concludes that these facts are irrelevant to the liability aspect of
              Plaintiffs’ claim for wages under the AMWA. The AMWA does not
              incorporate the federal 203(o) [exception].

Also on January 23, 2015, the parties stipulated to the remaining issues of fact and procedures.

For purposes of the calculation of damages for the period of June 6, 2009, through August 4,

2013, the parties agreed that during each work shift, depending on the department, the

employees spent 14.2 minutes to 20.22 minutes performing donning, doffing, waiting and

walking activities.

       On August 4, 2015, the circuit court entered an order denying the employees’ request

for liquidated damages, reasoning that “it is not clear that [Gerber] should have known prior

to this Court’s ruling that the compensation should have been paid for donning and doffing

activities.” The circuit court granted the employees’ request for prejudgment interest at a rate

of 6% per annum accruing based on the amount of damages on each payday within the

damages period until entry of the final judgment.

       On the same date, the circuit court entered its final judgment pursuant to its January


                                               6
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23, 2015 order and the parties’ January 23, 2015 stipulation of the remaining issues of fact and

procedures. Accordingly, the total amount of damages awarded to the employees was

$3,001,669.84. In addition to the 6% prejudgment interest, the employees were awarded

postjudgment interest at a rate of 10% per annum. On September 1, 2015, Gerber filed its

notice of appeal.

                                       Law and Analysis

       On appeal, Gerber argues that the circuit court erred in granting the employees’

motion for partial summary judgment. Generally, Gerber takes issue with the circuit court’s

finding that the AMWA requires Gerber to treat the time required by employees to complete

the mandatory donning and doffing activities as compensable work time. Specifically, Gerber

argues that donning and doffing activities are noncompensable based on 29 U.S.C. § 203(o),

an exception contained in the FLSA. The employees respond that Gerber’s failure to treat

the donning and doffing activities as compensable work time resulted in a violation of the

AMWA. Further, the employees argue that the AMWA does not contain the FLSA

exception, and Arkansas Code Annotated section 11-4-218(b) prevents the parties from

entering into an agreement in contravention of the overtime provision of the AMWA.

       On appeal, the issue is whether the mandatory donning and doffing activities constitute

compensable work time pursuant to the AMWA despite contrary custom and practice under

the collective-bargaining agreement.

                                Donning and Doffing Activities

       First, we consider whether the donning and doffing activities required by Gerber


                                               7
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constitute work for purposes of the AMWA. This is a case of first impression that turns on

this court’s interpretation of the AMWA.

       A circuit court will grant summary judgment only when it is apparent that no genuine

issues of material fact exist requiring litigation and that the moving party is entitled to

judgment as a matter of law. Quarles v. Courtyard Gardens Health & Rehab., LLC, 2016 Ark.

112. Once the moving party has established a prima facie entitlement to summary judgment,

the opposing party must meet proof with proof and demonstrate the existence of a material

issue of fact. Id. In reviewing a grant of summary judgment, an appellate court determines if

summary judgment was appropriate based on whether the evidentiary items presented by the

moving party in support of the motion left a material question of fact unanswered. Id. We

view the evidence in the light most favorable to the party against whom the motion was filed,

resolving all doubts and inferences against the moving party. Id.

       We review issues of statutory interpretation de novo. See Ryan & Co. AR, Inc. v.

Weiss, 371 Ark. 43, 263 S.W.3d 489 (2007). The basic rule of statutory construction is to give

effect to the intent of the General Assembly. Id. In determining the meaning of a statute, the

first rule is to construe it just as it reads, giving the words their ordinary and usually accepted

meaning in common language. Id. This court construes the statute so that no word is left void,

superfluous, or insignificant, and meaning and effect are given to every word in the statute if

possible. Id. “This court is very hesitant to interpret a legislative act in a manner contrary to

its express language, unless it is clear that a drafting error or omission has circumvented

legislative intent.” Moore v. Moore, 2016 Ark. 105, at 6, ___ S.W.3d ___, ___ (citing Cave


                                                8
                                    Cite as 2016 Ark. 222

City Nursing Home, Inc. v. Ark. Dep’t of Human Servs., 351 Ark. 13, 89 S.W.3d 884 (2002)).

        Turning to the relevant provisions of the AMWA, Arkansas Code Annotated section

11-4-211(a) provides that “no employer shall employ any of his or her employees for a work

week longer than forty (40) hours unless the employee receives compensation for his or her

employment in excess of the hours above specified at a rate not less than one and one-half (1

1/2) times the regular rate of pay at which he or she is employed.”

        Neither the AMWA nor the FLSA expressly defines the term “work.” Arkansas Code

Annotated section 11-4-203(2) defines “employ” as “to suffer or to permit to work.” The

plain and ordinary meaning of the word “work” is defined as an “activity in which one exerts

strength or faculties to do or perform.” Webster’s Third New International Dictionary 2634

(1993). Upon arrival, the employees are required to change into uniforms and shoes, use a

lint roller on their clothing, don protective gear, wash their hands, and walk to the preshift

meeting. At the completion of their shifts, the employees are required to doff their protective

clothing. We hold that the donning and doffing activities at issue constitute “work” because

these activities are performed pursuant to strict procedures developed by Gerber and are

performed for the benefit of Gerber.

        The Arkansas Department of Labor’s regulations also support our decision that time

spent   donning    and    doffing   constitutes   work.     Arkansas   Administrative    Code

010.14.1-108(A)(1) (WL current through April 2016) provides that “[w]ork not requested but

suffered or permitted is work time. For example, an employee may voluntarily continue to

work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned


                                              9
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task or he may wish to correct errors, paste work tickets, prepare time reports or other

records. The reason is immaterial. The employer knows or has reason to believe that he is

continuing to work and the time is working time.”             Arkansas Administrative Code

010.14.1-108(A)(3)goes on to state, “In all such cases it is the duty of the management to

exercise its control and see that the work is not performed if it does not want it to be

performed. It cannot sit back and accept the benefits without compensating for them.”

Finally, Ark. Admin. Code 010.14.1-108(B)(2) provides that waiting time, while on duty, is

considered worktime if the employee is unable to use the time effectively for his own

purposes. Here, Gerber is accepting the benefit of the employees donning and doffing

without providing proper compensation to the employees. Further, the time the employees

spend performing these mandatory activities is time that the employees are unable to use for

their own purposes.

       Thus, Gerber’s mandatory donning and doffing activities clearly constitute “work” as

contemplated by the AMWA.4

                                Collective-Bargaining Agreement

       Having determined that donning and doffing activities are considered work under the

AMWA, we must next determine whether Gerber and the Union, through the collective-


       4
        Gerber also argues that the AMWA does not require pay for time spent walking to
and from workstations. Gerber cites to the FLSA and federal case law for the proposition that
walking time is compensable only if it occurs after a principal activity. Further, Gerber argues
that because donning and doffing is not a principal activity, walking time is noncompensable
because it does not follow a principal activity. See Adair v. ConAgra Foods, Inc., 728 F.3d 849,
851 (8th Cir. 2013). Because we hold that donning and doffing activities constitute work,
we reject Gerber’s argument regarding walking time.
                                              10
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bargaining agreement, are permitted to agree to not compensate the employees for donning

and doffing activities.

       Gerber argues that we should interpret the FLSA and the AMWA consistently and

urges this court to engraft 29 U.S.C. § 203(o) into the AMWA, which would result in the

time spent donning and doffing being noncompensable. To support its position, Gerber cites

to Department of Veterans Affairs v. Okeke, 2015 Ark. 275, 466 S.W.3d 399, for the proposition

that the AMWA mirrors the FLSA. Further, the employees argue that we should not engraft

an FLSA exception when the legislature clearly chose to omit the exception from the

AMWA.

       At the outset, we must note that Okeke merely stated that “[t]he AMWA appears to

impose the same overtime requirements as the FLSA.” 2015 Ark. 275, at 6, 466 S.W.3d at

403. This statement should not be taken to mean that the AMWA and the FLSA impose the

exact same requirements or that the two mirror each other exactly.

       The federal exception at issue is 29 U.S.C. § 203(o) of the FLSA, which carves out an

exception for unionized employees:

       In determining for the purposes of sections 206 and 207 of this title the hours for
       which an employee is employed, there shall be excluded any time spent in changing
       clothes or washing at the beginning or end of each workday which was excluded from
       measured working time during the week involved 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).

       Gerber relies on Ark. Admin. Code 010.14.1-112, which states that the Arkansas

Department of Labor “may rely on the interpretations of the U.S. Department of Labor and

                                             11
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federal precedent established under the Fair Labor Standards Act in interpreting and applying

the provisions of [the AMWA] . . . except to the extent a different interpretation is clearly

required.”

       The plain language of Arkansas Code Annotated section 11-4-218(b) demonstrates that

a “different interpretation is clearly required.” Section 11-4-218(b) states that “[a]ny

agreement between the employee and the employer to work for less than minimum wages shall

be no defense to the action.” (Emphasis added.) “Minimum Wages” includes “overtime

compensation.”      Arkansas Code Annotated section 11-4-218, entitled “Employee’s

remedies,” specifically provides the following:

       (a)(1) Any employer who pays any employee less than the minimum wages, including
       overtime compensation or compensatory time off as provided by this subchapter, to which
       the employee is entitled under or by virtue of this subchapter shall:

              (A)    Pay any applicable civil penalties; and

              (B)    Be liable to the employee affected for:

                     (i)     The full amount of the wages, less any amount actually paid to
                             the employee by the employers; and

                     (ii)    Costs and such reasonable attorney's fees as may be allowed by
                             the court.

Ark. Code Ann. § 11-4-218(a)(1) (emphasis added).

       Gerber altogether ignores this statute in its opening brief. However, in its reply brief,

Gerber argues that section 11-4-218(b) does not apply to the collectively bargained labor

agreement between Gerber and the Union. Gerber notes that the labor contract is not an

agreement between a single employee and employer; rather, it is an agreement between an


                                              12
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employer and a well-established and sophisticated union. Gerber also argues that the

collective-bargaining agreement did not result in any of the employees being paid less than

minimum wage; rather, all of the employees were paid more than double minimum wage,

and the average wage under the agreement was close to triple the amount of minimum wage.

       Gerber’s argument that the employees were paid more than double minimum wage

is of no moment. Arkansas Code Annotated section 11-4-204, entitled “Law most favorable

to employees applicable-Liberal construction,” states in subsection (b) that “[t]his subchapter

shall be liberally construed in favor of its purposes and shall not limit any law or policy that

requires payment of higher or supplemental wages or benefits.”

       Next, Gerber focuses on Arkansas Code Annotated section 11-4-205, entitled “Right

of collective bargaining not affected”: Nothing in this subchapter shall be deemed to interfere

with, impede, or in any way diminish the right of employers and employees to bargain

collectively through representatives of their own choosing in order to establish wages or other

conditions of work. Thus, Gerber’s position appears to be that because the agreement at issue

is a collective-bargaining agreement between an employer and a union, the parties were free

to enter into an agreement in violation of other provisions of the AMWA.

       We disagree with Gerber’s position. In considering all the relevant statutes together

and seeking to ascertain the legislature’s intent, it is clear that had the legislature intended

section 11-4-205 to except collective-bargaining agreements entered into between employers

and unions from the AMWA, it would have included a provision similar to the FLSA’s 203(o)

exception. Further, it is well settled that we will not read into a statute a provision that was


                                              13
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not included by the General Assembly. Scoggins v. Medlock, 2011 Ark. 194, 381 S.W.3d 781

(citing Potter v. City of Tontitown, 371 Ark. 200, 264 S.W.3d 473 (2007)). Because the

AMWA does not contain the FLSA’s 203(o) exception, we decline to engraft this exception

into the AMWA. To engraft the FLSA’s 203(o) exception into the AMWA would involve

the addition of words that do not appear in the text of the AMWA.

       We hold that the donning and doffing activities constitute compensable work under

the AMWA, despite the custom and practice under the collective-bargaining agreement.

Further, we decline to engraft the FLSA’s 203(o) exception into the AMWA. Accordingly,

we affirm the circuit court’s order granting the employees’ motion for partial summary

judgment.

       Affirmed.

       BRILL, C.J., and HART and WOOD, JJ., dissent.

       RHONDA K. WOOD, Justice, dissenting. I respectfully dissent. As a result of the

majority’s decision, Arkansas will repeat the past mistakes of the federal government, and the

floodgates will open to litigation at the enormous cost to businesses in Arkansas. In addition,

the majority undermines the collective-bargaining process and destroys any confidence

employers and employees have in the enforceability of their agreements.

       The majority repeats the unfavorable history set in motion by the United States

Supreme Court following its first interpretation of “work” and “workweek” under the FLSA.

See Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598 (1944); Anderson

v. Mt. Clemens Pottery Co., 328 U.S. 680, 690-91(1946). The initial version of the FLSA,


                                              14
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enacted in 1938, did not define “work” or “workweek,” and the United States Supreme

Court, in turn, interpreted those terms broadly. It defined “work” as “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 and his business.” Tennessee Coal 321

U.S. at 598. It similarly defined “the statutory workweek” to “includ[e] all time during

which an employee is necessarily required to be on the employer’s premises, on duty or at a

prescribed workplace.” Anderson 328 U.S. at 690–91.These decisions resulted in an

outpouring of lawsuits at the expense of businesses. As the Supreme Court recently

acknowledged,

               These decisions provoked a flood of litigation. In the six months following this
       Court’s decision in Anderson, unions and employees filed more than 1,500 lawsuits
       under FLSA. These suits sought nearly $6 billion in backpay and liquidated damages
       for various preshift and postshift activities.

Integrity Staffing Sols., Inc. v. Busk, 135 S. Ct. 513, 517 (2014).

       Fortunately, following these decisions, Congress acted quickly and passed the Portal-

to-Portal Act, which exempted employers from liability for future claims based on two

specific categories: “walking, riding, or traveling to and from the actual place of performance

of the principal activity or activities which such employee is employed to perform,” and

“activities which are preliminary to or postliminary to said principal activity or activities.” 29

U.S.C. § 254(a)(1), (2). The United States Supreme Court recently held in Sandifer v. United

States Steel Corp., 134 S. Ct. 870 (2014), that “changing clothes” under § 203(o) includes

protective clothing worn as part of the principal activities for which workers are employed.

       The majority repeats the mistakes of the past despite the fact that the AMWA’s

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regulations specifically instruct the state’s labor department to look to federal precedent under

the FLSA:

       The department may rely on the interpretations of the U.S. Department of Labor and
       federal precedent established under the Fair Labor Standards Act in interpreting and
       applying the provisions of the Act and Rule 010.14-100 through – 113, except to the
       extent a different interpretation is clearly required.
Ark. Code R. § 010.14-112 (emphasis added).

       The majority contends that the General Assembly’s silence signals a clear intent to

depart from the FLSA. However, this is a departure from precedent. In instances where a

state statute was silent on an issue, this court typically looked to analogous federal statutes and

federal precedent. See Island v. Buena Vista Resort, 352 Ark. 548, 556, 103 S.W.3d 671, 675

(2003) (“We have explained that our state courts may look to federal decisions for persuasive

authority when considering claims under the Arkansas Civil Rights Act.”); Kellar v. Fayetteville

Police Dep’t, 339 Ark. 274, 279, 5 S.W.3d 402, 405 (1999) (“We have been given no reason

why we should interpret Arkansas’s ex post facto clause in a manner contrary to the . . . United

States Constitution. Thus, we look to federal as well as state law for guidance.”); Barclay v.

First Paris Holding Co., 344 Ark. 711, 726, 42 S.W.3d 496, 505 (2001) (“Our state system of

income taxation is based on the federal system, and our legislature has consistently looked to

the federal income tax regulations for guidance.”); UMLIC 2 Funding Corp. v. Butcher, 333

Ark. 442, 447, 970 S.W.2d 211, 214 (“Because [12 U.S.C.] section 1821 is silent regarding

the rights of transferees and assignees, state courts addressing this issue have looked to the

federal courts and the applicable state common law for guidance.”).



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       Similarly, other courts have looked to the FLSA for guidance when their state labor

statute is silent on a particular issue. See Mitchell v. JCG Indus., 929 F. Supp. 2d 827, 833

(N.D. Ill. 2013) (“Where the IMWL is silent on an issue, Illinois courts (and federal courts

applying Illinois law) look to analogous federal statutes—the FLSA in particular—for

guidance.”); Thompson v. Blessed Home Inc., 22 F. Supp. 3d 542, 550 (E.D. N.C. 2014) (“In

interpreting the NCWHA, North Carolina courts look to the FLSA for guidance.”); Kirchoff

v. Wipro, Inc., 894 F. Supp. 2d 1346, 1350 (W.D. Wash. 2012) (“[T]he Court may look to

the FLSA for guidance in interpreting Washington’s Minimum Wage Act.”).

       Second, there is no clear evidence that the General Assembly intended the AMWA to

set aside long-established contracts between employers and organized labor unions. We

cannot forget that the bargaining parties here are a corporation and a union. Both are

sophisticated and well-practiced negotiators. The record reflects that it was the custom and

practice between Gerber and the union to exclude donning and doffing activities from paid

time. During negotiations, the union requested donning and doffing pay, but later abandoned

that proposal. Following negotiations, the union accepted the terms of the contract. We

cannot know whether the union received higher wages or extra benefits in exchange for

dropping its request for donning and doffing. Nevertheless, the employees received wage

increases and other benefits as a result of the negotiations. The settled practice of excluding

donning and doffing remained in place.

       Significantly, the AMWA discourages interpretations of the Act that interfere with or

impede collective bargaining. Ark. Code Ann. § 11-4-205. Arkansas law specifically and


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repeatedly provides that the right to collectively bargain is of upmost importance to the public

policy of this State. Arkansas Code Annotated section 11-3-301 states, “Freedom of

organized labor to bargain collectively and freedom of unorganized labor to bargain

individually is declared to be the public policy of the state under Arkansas Constitution,

Amendment 34.” Furthermore, Arkansas Code Annotated section 11-4-205 provides,

“Nothing in this subchapter shall be deemed to interfere with, impede, or in any way

diminish the right of employers and employees to bargain collectively through representative

of their own choosing in order to establish wages or other conditions of work.” Thus, there

is no need to engraft the FLSA’s § 203(o) exception into the AMWA as the majority opines.

The AMWA’s own text demonstrates that collectively bargained-for agreements should be

upheld.

       Furthermore, the majority’s statement that the plain language of the AMWA requires

us to abrogate the collective-bargaining agreement between Gerber and the class employees

is irrelevant since the AMWA’s minimum-wage requirement has not been violated. The

AMWA provides remedies for employees against only the “employer who pays any employee

less than the minimum wages, including overcompensation or compensatory time off.” Ark.

Code Ann. § 11-4-218(a). However, it is undisputed in this case that the employees’ wages

were well above the required minimum wage. The parties agree that every class member

earned almost three times the minimum wage. As section 11-4-218(a) and (b) have not been

violated, there is no remedy available to the class members.1

      1
        Although section 11-4-218(b) states that “an agreement between the employee and
the employer to work for less than minimum wages shall be no defense to the action,” that
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        For this court to abrogate the collectively bargained agreements between Gerber and

its employees, which have customarily and generally excluded donning and doffing from the

rate of pay, and afford the employees a windfall, is unjustified, particularly when the

agreements do not violate the minimum-wage requirement. For these reasons, I would

reverse the circuit court’s denial of Gerber’s motion for summary judgment and dismiss the

case.

        BRILL, C.J., and HART, J., join.

        Quattlebaum, Grooms & Tull PLLC, by: E.B. Chiles IV and Joseph R. Falasco, for

appellant.

       Holleman & Associates, P.A., by: John Holleman and Timothy A. Steadman; and
Byars, Hickey & Hall, P.L.L.C., by: Joe D. Byars, Jr., for appellees.




applies only if the agreement results in the employee receiving wages that are below the
minimum—which clearly is not the situation in this case.
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