                                                              2016 WI 13

                  SUPREME COURT           OF     WISCONSIN
CASE NO.:               2014AP1880
COMPLETE TITLE:         United Food & Commercial Workers Union, Local
                        1473, Dennis
                        A. Warne, Charles R. Seeley and Pamela Collins,
                                   Plaintiffs-Respondents,
                             v.
                        Hormel Foods Corporation,
                                   Defendant-Appellant.

                           ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED:          March 1, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          October 5, 2015

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Rock
   JUDGE:               Michael R. Fitzpatrick

JUSTICES:
   CONCUR & DISSENT:    ROGGENSACK, C.J., PROSSER, J., concur and
                        dissent. (Opinion Filed)
  DISSENTED:            Gableman, Ziegler, J.J., dissent. (Opinion
                        Filed)
  NOT PARTICIPATING:    R.G. Bradley, J., did not participate.

ATTORNEYS:
       For the defendant-appellant, there were briefs by Thomas P.
Krukowski and Whyte Hirschboeck Dudek, S.C., Milwaukee, and oral
argument by Thomas P. Krukowski.




       For the plaintiffs-respondents, there was a brief by Mark
A. Sweet       and     Sweet and Associates, LLC, Milwaukee, and oral
argument by Mark A. Sweet.
                                                                        2016 WI 13
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.       2014AP1880
(L.C. No.    2010CV2595)

STATE OF WISCONSIN                            :            IN SUPREME COURT

United Food & Commercial Workers Union, Local
1473, Dennis A. Warne, Charles R. Seeley and
Pamela Collins,

              Plaintiffs-Respondents,                                FILED
      v.                                                         MAR 1, 2016
Hormel Foods Corporation,                                          Diane M. Fremgen
                                                                Clerk of Supreme Court
              Defendant-Appellant.




      APPEAL from a judgment and order of the Circuit Court for

Rock County, Michael R. Fitzpatrick, Judge.              Affirmed.


      ¶1      SHIRLEY S. ABRAHAMSON, J.           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


      1
       Dennis A. Warne, Charles R. Seeley, and Pamela Collins
join as plaintiffs. We refer only to the Union as the plaintiff
for simplicity.
                                                                            No.     2014AP1880



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:
                 (1)   Is     the    donning       and     doffing    of    the     company-

                       required clothing and equipment compensable work

                       time         or     non-compensable            preliminary           and




       2
       All subsequent references to the Wisconsin statutes are to
the 2013-14 version unless otherwise indicated.


                                               2
                                                                          No.     2014AP1880



                    postliminary         activities      under     Wis.      Admin.      Code

                    § DWD 272.12(2)(e) (Feb. 2009)3; and

            (2)     Even 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?

      ¶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:


      3
       All subsequent references to the Wisconsin Administrative
Code are to the February 2009 register date unless otherwise
noted.


                                            3
                                                                No.     2014AP1880



         (1)   Wisconsin Admin. Code § DWD 272.12 requires Hormel

               to compensate its employees for the 5.7 minutes

               per day spent donning and doffing the clothing and

               equipment at the beginning and end of the day.

               Relying on the Tyson Foods case, Weissman v. Tyson

               Prepared   Foods,         Inc.,   2013    WI    App    109,    350

               Wis. 2d 380, 838 N.W.2d 502, as did the circuit

               court, we conclude, as did the circuit court, that

               the employees' donning and doffing clothing and

               equipment at the beginning and end of the day

               brought Hormel into compliance with federal food

               and   safety    regulations        and    was    integral      and

               indispensable    to       sanitation     and    safety    in   the

               employees' principal work activities, namely food

               production.4

         (2)   The donning and doffing of clothing and equipment

               at the beginning and end of the day does not fall

               within the doctrine of de minimis non curat lex.
               The wages involved are not a "trifle" either for

               the employees or for Hormel.




    4
       The court granted review in the Tyson Foods case.    See
Weissman v. Tyson Prepared 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. The review was dismissed prior to
argument or a decision by this court, however, when the parties
settled the litigation.


                                     4
                                                                   No.    2014AP1880



    ¶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, 135

S. Ct. 513 (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.
                                       5
                                                                         No.     2014AP1880



      ¶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.


                                              6
                                                                         No.    2014AP1880



       ¶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.



       5
       The shoes must be kept at the facility and are called
"captive shoes."


                                               7
                                                                   No.   2014AP1880



       ¶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


       6
       This stipulation includes not just the time spent donning
and doffing the required clothing and equipment, but also time
spent washing hands and walking to and from workstations.
Nonetheless, under Wis. Admin. Code § DWD 272.12(1)(a)2., the
"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.'"

     Because we hold that donning and doffing the required
clothing and equipment at the beginning and end of the day is
integral and indispensable to the employees' principal work
activity of food preparation, the donning and doffing is itself
a principal work activity.   See IBP, Inc. v. Alvarez, 546 U.S.
21, 37 (2005) ("[W]e hold that any activity that is 'integral
and indispensable' to a 'principal activity' is itself a
'principal activity . . . .'").    As a result, the time spent
walking to or from workstations or washing hands occurs after
the employees' "workday" begins and is thus compensable.     See
IBP, 546 U.S. at 37 ("Moreover, during a continuous workday, any
walking time that occurs after the beginning of the employee's
first principal activity and before the end of the employee's
last principal activity is . . . covered by the FLSA.").


                                        8
                                                                    No.    2014AP1880



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
                                         9
                                                                                  No.    2014AP1880



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
                                                    10
                                                                     No.     2014AP1880



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.                 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;

Brown, 298 Wis. 2d 37, ¶18.

       ¶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.

       7
       See Laurie E. Leader, Wages and Hours: Law & Practice
§ 6.03[7], at 6-30 (2015).


                                          11
                                                          No.    2014AP1880



     ¶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.


     8
       In the circuit court, the parties also disagreed about the
burden of proof. The Union argued that it would have the burden
of proof to demonstrate that the acts at issue are "work," and
the burden would then shift to Hormel to demonstrate that the
acts are noncompensable.     Hormel disagreed with the Union's
description of the burden of proof, although Hormel agreed that
it had the burden of proof on the application of the de minimis
doctrine.

     The circuit court stated that the (undefined) burdens of
proof were on the respective parties by the greater weight of
the credible evidence.    The circuit court viewed Hormel as
having the burden of proof on the application of the de minimis
doctrine.

     In this court, neither party raises the issue of the
allocation of the burdens of proof.      As a result, we do not
address the issue.    See State v. Gracia, 2013 WI 15, ¶28 n.13,
345 Wis. 2d 488, 826 N.W.2d 87 (stating "we do not usually
address undeveloped arguments").    Regardless of the allocation
of the burdens of proof, we conclude the circuit court's
decision was correct.


                                    12
                                                                        No.     2014AP1880



     ¶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


     9
       Wisconsin Admin. Code § DWD 272.12, titled "Interpretation
of hours worked," states in (1)(a)1.:

     (1) Principles for determination of hours worked. (a)
     General requirements of sections. 1. Employees subject
     to the statutes 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." The 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 work place."
     10
          Wisconsin Admin. Code § DWD 272.12(1)(a)2. states:

                                                                           (continued)
                                            13
                                                                         No.    2014AP1880



     ¶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



     'Workday,' 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.'       The
     'workday' may thus be longer than the employee's
     scheduled shift, hours, tour of duty, or time on the
     production line. Also, its duration may vary from day
     to day depending upon when the employee commences or
     ceases their 'principal' activities (emphasis added).
     11
          See   Wis.    Admin.     Code     § DWD        272.12(2)(e)c.         (emphasis
added).
     12
          See Tyson Foods, 350 Wis. 2d 380, ¶26.


                                          14
                                                 No.   2014AP1880



is therefore most helpful in deciding the instant case.      Here

are the three examples in the regulations:

    a. In connection with the operation of a lathe, an
    employee will frequently, at the commencement of their
    workday, oil, grease, or clean their machine, or
    install a new cutting tool.    Such activities are an
    integral part of the principal activity, and are
    included within such term.

    b. In the case of a garment worker in a textile mill,
    who is required to report 30 minutes before other
    employees   report   to   commence   their   principal
    activities, and who during such 30 minutes distributes
    clothing or parts of clothing at the workbenches of
    other employees and gets machines in readiness for
    operation by other employees, such activities are
    among the principal activities of such employee. Such
    preparatory activities are compensable under this
    chapter.

    c. Among the activities included as an integral part
    of the principal activity are those closely related
    activities which are indispensable to its performance.
    If an employee in a chemical plant, for example,
    cannot perform their principal activities without
    putting on certain clothes, changing clothes on the
    employer's premises at the beginning and end of the
    workday would be an integral part of the employee's
    principal activity.    On the other hand, if changing
    clothes is merely a convenience to the employee and
    not directly related to their principal activities, it
    would   be    considered   as   a   "preliminary"   or
    "postliminary" activity rather than a principal part
    of the activity. However, activities such as checking
    in and out and waiting in line to do so would not




                               15
                                                               No.    2014AP1880


     ordinarily be regarded as integral               parts     of    the
     principal activity or activities.13
     ¶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




     13
       This Wisconsin regulation is substantially similar to
federal regulations addressing the phrase "principal activity or
activities."   Compare Wis. Admin. Code § DWD 272.12(2)(e) with
29 C.F.R. § 785.24 and 29 C.F.R. § 790.8(b)-(c). Specifically,
the federal regulations provide the exact same three examples
that § DWD 272.12(2)(e) provides to clarify when an activity is
an "integral part of a principal activity" for which employees
must receive compensation.

     The history and purposes of the Fair Labor Standards Act,
federal regulations, Wisconsin law and regulations, and case law
interpreting the statutes and regulations are set forth at
length in prior cases and need not be repeated here. See, e.g.,
Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513, 516-
18 (2014); Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 875-76
(2014); Tyson Foods, 350 Wis. 2d 380, passim.


                                       16
                                                                     No.    2014AP1880



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




     14
          Tyson Foods, 350 Wis. 2d 380, ¶4.
     15
          Tyson Foods, 350 Wis. 2d 380, ¶4.
     16
       The court of appeals concluded that the donning and
doffing activities were required and controlled by Tyson Foods
and primarily benefited the employer, satisfying the initial
inquiry. Tyson Foods, 350 Wis. 2d 380, ¶¶17, 22.
     17
          Tyson Foods, 350 Wis. 2d 380, ¶¶17, 23.


                                           17
                                                                           No.     2014AP1880



"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


       18
            Tyson Foods, 350 Wis. 2d 380, ¶23.
       19
            Tyson Foods, 350 Wis. 2d 380, ¶¶26, 28-29, 32, 37.
       20
            Tyson Foods, 350 Wis. 2d 380, ¶32.


                                               18
                                                                              No.   2014AP1880



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


       21
            Tyson Foods, 350 Wis. 2d 380, ¶28.
       22
            Tyson Foods, 350 Wis. 2d 380, ¶4.
       23
            Tyson Foods, 350 Wis. 2d 380, ¶36.
       24
            Tyson Foods, 350 Wis. 2d 380, ¶31.


                                             19
                                                                      No.     2014AP1880



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
                                          20
                                                                            No.     2014AP1880



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(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 Foods case "puts state law at odds with federal authority,
                                              21
                                                                   No.     2014AP1880



namely,    with   the   United     States     Supreme    Court    holding"       in   a

recent decision, Integrity Staffing Solutions, Inc. v. Busk, 135

S. Ct. 513 (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; 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(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


     25
          See 29 C.F.R. § 790.8(c).
     26
          Integrity Staffing, 135 S. Ct. at 515.
     27
          Integrity Staffing, 135 S. Ct. at 515.


                                         22
                                                                                No.    2014AP1880



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




       28
            Integrity Staffing, 135 S. Ct. at 516.
       29
            Integrity Staffing, 135 S. Ct. at 519.


                                                23
                                                                         No.    2014AP1880



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

     30
          Integrity Staffing, 135 S. Ct. at 518.
     31
          Integrity Staffing, 135 S. Ct. at 519.
     32
       In Steiner v. Mitchell, 350 U.S. 247 (1956), the Court
held battery plant employees were entitled to compensation for
time spent showering and changing clothes because of the toxic
chemicals in the plant were "indispensable to the performance of
their productive work and integrally related thereto." Steiner,
350 U.S. at 249, 251. In a different case, the Court held that
meatpacker employees were entitled to compensation for time
spent sharpening their knives.     See Mitchell v. King Packing
Co., 350 U.S. 260, 262-63 (1956). Conversely, in a third case,
the Supreme Court held the time spent waiting by poultry plant
employees to don protective equipment was noncompensable because
"such waiting . . . was two steps removed from the productive
activity on the assembly line . . . .'"    IBP, Inc. v. Alvarez,
546 U.S. 21, 42 (2005) (emphasis added).


                                           24
                                                                   No.   2014AP1880



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.    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., 134 S. Ct. 870 (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



       33
       Integrity Staffing, 135 S. Ct. at 519 ("[A]n activity is
integral and indispensable to the principal activities . . . if
it is an intrinsic element . . . with which the employee cannot
dispense if he is to perform his principal activities."); Tyson
Foods, 350 Wis. 2d 380, ¶26 ("An integral part of a principal
activity includes . . . an activity that is . . . indispensable
to its performance.").
       34
            Sandifer, 134 S. Ct. at 874.
       35
            Sandifer, 134 S. Ct. at 874.


                                        25
                                                                          No.    2014AP1880



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

     36
          29 U.S.C. § 203(o) (emphasis added).
     37
          Sandifer, 134 S. Ct. at 874.
     38
       Sandifer, 134 S. Ct. at 877 (quoting Steiner v. Mitchell,
350 U.S. 247, 256 (1956)).
     39
       Sandifer, 134 S. Ct. at 876 (quoting Sandifer v. U.S.
Steel Corp., 678 F.3d 590, 596 (7th Cir. 2012)).


                                            26
                                                            No.    2014AP1880



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




     40
          Sandifer, 134 S. Ct. at 876-79.
     41
          Sandifer, 134 S. Ct. at 879.


                                    27
                                                                No.   2014AP1880



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

     42
       Although the concurrence/dissent concludes that the
unpaid meal periods are not compensable, the concurrence/dissent
cites only one of these regulations, Wis. Admin. Code § DWD
274.02(3).   See concurrence/dissent, ¶119 n.8.     Instead, the
concurrence/dissent analyzes whether leaving the facility during
a meal period is a "principal activity" under Wis. Admin. Code
§ DWD 272.12(2)(e). See concurrence/dissent, ¶¶122-124.

     The "principal activity" analysis under Wis. Admin. Code
§ DWD 272.12(2)(e) applies to "[p]reparatory and concluding
activities."     Meal periods are not generally viewed as
"[p]reparatory and concluding activities."


                                      28
                                                                     No.   2014AP1880



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.




                                            29
                                                                   No.    2014AP1880



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



     43
       The Union argued that because Hormel's work rules
required the employees to don and doff their clothing and
equipment to leave the facility during their meal periods, the
vast majority of employees chose to remain on site during their
meal periods. The circuit court referred to this as the Union's
"chilling effect" argument, and concluded it was unsupported by
any credible evidence.   If the circuit court had accepted the
Union's "chilling effect" argument, damages would have been
about $1.5 million.


                                       30
                                                                           No.    2014AP1880



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


       44
            See concurrence/dissent, ¶119.
       45
            Concurrence/dissent, ¶120.


                                              31
                                                                    No.     2014AP1880



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

     46
       See Maurin v. Hall, 2004 WI 100, ¶120, 274 Wis. 2d 28,
682 N.W.2d 866 (Abrahamson, C.J., & Crooks, J., concurring)
("The rule of law is generally best developed when matters are
tested by the fire of adversarial briefs and oral argument),
overruled on other grounds by Bartholomew v. Wis. Patients Comp.
Fund, 2006 WI 91, 293 Wis. 2d 38, 717 N.W.2d 216


                                            32
                                                                   No.    2014AP1880



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 (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."




     47
       The Sandifer court remarked (in the context of 29 U.S.C.
§ 209(o)) that "[a] de minimis doctrine does not fit comfortably
within the statute at issue here, which, it can fairly be said,
is all about trifles——the relatively insignificant periods of
time in which employees wash up and put on various items of
clothing needed for their jobs." Sandifer, 134 S. Ct. at 880.


                                     33
                                                                                No.        2014AP1880



       ¶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

Delevan v. City of Delevan, 176 Wis. 2d 516, 532, 500 N.W.2d 268

(1993)       (annexation);          Waupaca       Cnty.    v.     Bax,       No.     2009AP1406,

unpublished slip op. (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    (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.         The     de

minimis doctrine appears in the federal regulations.                                         See 29


       48
            Tyson Foods, 350 Wis. 2d 380, ¶51.


                                                34
                                                                          No.      2014AP1880



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., 134 S. Ct. 870,

881 (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
                                            35
                                                                                  No.    2014AP1880



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:

             (1)     Wisconsin     Admin.          Code     §    DWD        272.12       requires

                     Hormel to compensate its employees for the 5.7

                     minutes    per     day      spent     donning          and    doffing       the

                     clothing and equipment at the beginning and end

                     of the day.         Relying on Tyson Foods, 350 Wis. 2d
                     380, as did the circuit court, we conclude, as
                                              36
                                                              No.       2014AP1880



               did   the     circuit     court,    that     the     employees'

               donning and doffing clothing and equipment at the

               beginning and end of the day brought Hormel into

               compliance      with      federal     food         and     safety

               regulations and was integral to sanitation and

               safety   in   the   employees'      principal       activities,

               namely food production.

         (2)   The required donning and doffing of clothing and

               equipment at the beginning and end of the day

               does not fall within the doctrine of de minimis

               non curat lex.           The wages involved are not              a

               "trifle" either for the employees or Hormel.

    By the Court.-The judgment and order of the circuit court

is affirmed.

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




                                   37
                                                                        No.    2014AP1880.pdr


     ¶108 PATIENCE DRAKE ROGGENSACK, C.J. (concurring in part,

dissenting in part).             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


     1
       The lead opinion represents the decision of two justices:
Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley.
     2
         Lead op., ¶7.
     3
         Id. at ¶8.


                                               1
                                                                           No.    2014AP1880.pdr


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

                                                2
                                                                No.    2014AP1880.pdr


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

      4
       For convenience, I refer to the clothing provided by
Hormel as "whites," even though some employees are required to
wear clothing that is blue in color.
      5
       The record reflects that in the 1980s employees were
compensated 12 minutes per day for donning and doffing under the
then union contract.
      6
       Hormel does not argue that no compensation is due because
such compensation was bargained away in a collective bargaining
agreement, which is permitted under state and federal law. See
Aguilar v. Husco Int'l, Inc., 2015 WI 36, ¶24, 361 Wis. 2d 597,
863 N.W.2d 556; Wis. Admin. Code § DWD 274.05; see also Sandifer
v. United States Steel Corp., 134 S. Ct. 870, 878-79 (2014).


                                          3
                                                                  No.    2014AP1880.pdr


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.         DaimlerChrysler 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).




                                           4
                                                                      No.    2014AP1880.pdr


                       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


      7
          See lead op., ¶7.


                                             5
                                                                     No.    2014AP1880.pdr


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:

      CHIEF JUSTICE ROGGENSACK:    Part of your brief was
      people wanting to leave the workplace for 30 minutes,
      and in order to do so they have to take off the
      clothes that they're required to put on when they go
      out to lunch and put them back on again when they come
      in from lunch, correct?

      UNION COUNSEL:       Yes.




      8
          See Wis. Admin. Code § DWD 274.02(3) (2013).
      9
          Lead op., ¶88.


                                             6
                                              No.   2014AP1880.pdr

CHIEF JUSTICE ROGGENSACK:       Are you asking for
compensation for that in addition to the beginning of
the workday and the end of the workday for anybody who
leaves the place of employment?

UNION COUNSEL:   Well the trial court looked at that
and the regulations again are clear. That if there is
not a 30 minute uninterrupted break, it has to be paid
for. So the issue is, since people are required to don
before they leave the plant and doff before they, when
they come back, they are actually getting less than a
30-minute lunch.

CHIEF JUSTICE ROGGENSACK:       Okay so the answer to my
question is "yes?"

UNION COUNSEL: They should be paid for the lunchtime.
And the court found that approximately 1% of the
workers do that. So we're not asking for pay for the
other 99%.

. . . .

JUSTICE A.W. BRADLEY: I'm focusing on the lunch hour,
the 30 minutes.     Our opinions have to make sense
. . . .   This doesn't make sense to me.   If we would
agree with the trial court that the donning and
doffing for some employees who do this over the 30-
minute lunch hour should be compensable, what, doesn't
that provide an incentive for . . . more, maybe all of
the employees to say "oh let's get time and a half,
let's put on and take off over the 30-minute lunch
hour?" That doesn't make sense to me. It sounds like
it will be giving a rather perverse incentive.    Now,
so tell me why it does make sense. Tell me why, since
it only affects a few, according to the record, a few
employees, that shouldn't be considered de minimis. So
you've got two questions there.

UNION COUNSEL:     Well, again, it's only if, just
factually, if you're leaving the plant that you're
entitled   to   that   pay.  [Justice  A.W.   Bradley
interjects].   I think the exact same test is being
applied. So, if you find that donning and doffing the
clothes is compensable in the morning and in the
afternoon where employers are required because it is
integral and indispensable, the exact same argument
makes exact same sense because of the regulation that
requires a bona fide meal period of 30 minutes. So

                            7
                                                                No.   2014AP1880.pdr

    Hormel would be required to allow employees to take a
    full 30-minute lunch, which includes being able to don
    first, then leave the plant, then come back 30 minutes
    later, and then——or doff first——and then don on the
    way back in.

    JUSTICE A.W. BRADLEY: So you're not really responding
    to my concern about the potential for gaming the law?

    UNION COUNSEL:   I don't see how it's gaming because
    the legislature has said that the Department of
    Workforce Development has to pass these regulations,
    and they have. They've said that everyone is entitled
    to a 30-minute bona fide meal period.

    . . . .

    JUSTICE ABRAHAMSON: Does the 5.7 minutes include the
    initial putting them on and the final taking them off
    and the lunch hour donning and doffing?

    UNION COUNSEL:         No.

    JUSTICE ABRAHAMSON:    So it only deals with putting
    them on to begin with and taking them off, right?

    UNION COUNSEL:         Right.

    JUSTICE ABRAHAMSON:   But the trial court order says
    . . . that the class members have been denied the
    right to 30 minutes off duty to leave the premises and
    the doffing and donning clothes and gear during such
    30 minutes violates the class members.         So the
    declaratory judgment is that's a violation.

    UNION COUNSEL:         Right . . . yes.
    ¶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.
                                8
                                                                       No.      2014AP1880.pdr


      ¶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

                                             9
                                                                       No.    2014AP1880.pdr


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

(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 (citation omitted).

      10
       Because four justices, Chief Justice Roggensack, Justice
Prosser, Justice Ziegler and Justice Gableman, conclude that no
compensation is due for doffing and donning during lunch break,
the order of the circuit court is reversed in regard to the
$15,000 payment that the circuit court ordered.
      11
           Id., ¶¶8, 98.


                                             10
                                                                        No.   2014AP1880.pdr


     ¶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

                                           11
                                                           No.   2014AP1880.pdr


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.

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; 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

                                      12
                                                                             No.    2014AP1880.pdr


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.

                                               13
                                                                       No.    2014AP1880.pdr


       ¶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


       12
            See note 5, supra.


                                              14
                                                                   No.   2014AP1880.pdr


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

                                           15
                                                       No.   2014AP1880.pdr


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.




                                     16
                                                                          No. 2014AP1880.mjg


       ¶142 MICHAEL J. GABLEMAN, J.                   (dissenting).         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

       1
       This dissent often quotes information contained in the
record. The information quoted is largely derived from trial
testimony and the circuit court's opinion and order. Below is a
list of individuals who testified at trial:

       Scott A. Ramlo: Plant Manager at the Beloit cannery.

       Pamela Collins: Quality Control,                      Weight,       and    Seam
       Technician at the Beloit cannery.

       Charles Seeley: Production Specialist at the Beloit
       cannery.

       Dennis Warne: Stork Operator at the Beloit cannery.

       Resha   Hovde:   Corporate    Manager of Regulatory
       Compliance and HAACP. HAACP stands for "hazard
       analysis critical control point."

                                                                                 (continued)
                                               1
                                                                              No. 2014AP1880.mjg


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


       Francisco Velaquez: Human Resource and Safety Manager
       at the Beloit cannery.
       2
       Employees wear "captive" or "dedicated" shoes.                                      Captive
shoes are shoes that are left at the facility overnight.


                                                  2
                                                            No. 2014AP1880.mjg


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




      3
       The concurring/dissenting opinion correctly notes that in
the 1980's Hormel compensated its employees 12 minutes per day
for "donning and doffing" under a then-existing collective
bargaining   agreement    ("CBA").   Concurrence/Dissent,  ¶113.
Eventually the compensation Hormel's employees received for
"donning and doffing" was "bargained away." Id., ¶113 n.6.

     The Wisconsin Administrative Code allows employees to
bargain away rights they would otherwise have under the Code as
long as the parties enter into a CBA agreement and apply for a
waiver or otherwise meet the factors required for a waiver. See
Wis. Admin. Code § DWD 247.05; Aguilar v. Husco Int'l, Inc.,
2015 WI 36, ¶11, 361 Wis. 2d 597, 863 N.W.2d 556 ("[E]ven though
the 20-minute unpaid breaks were technically violations of the
code, it would be unreasonable to grant back pay because the
breaks had posed no health or safety concerns, the statute
permits waivers in circumstances such as these, and the
employees had enjoyed other benefits in exchange for . . . the
short unpaid meal periods.")

     But, as the concurring/dissenting opinion points out,
"Hormel does not argue that no compensation is due because such
compensation was bargained away in a collective bargaining
agreement, which is permitted under state and federal law."
Concurrence/Dissent, ¶113 n.6.
      4
       "Donning" a belt takes 16.740 seconds, "donning" ear plugs
takes 6.960 seconds, "donning" a hair net takes 9.780 seconds,
"donning" a hard hat takes 5.940 seconds, "donning" captive
shoes takes 26.280 seconds, "donning" safety glasses takes 5.400
seconds, "donning" uniform pants takes 19.320 seconds, and
"donning" a uniform shirt takes 18.780 seconds.


                                      3
                                                                No. 2014AP1880.mjg


"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


       5
       "Doffing" a belt takes 3.720 seconds, "doffing" ear plugs
takes 1.980 seconds, "doffing" a hair net takes 4.860 seconds,
"doffing" a hard hat takes 4.440 seconds, "doffing" captive
shoes takes 14.640 seconds, "doffing" safety glasses takes 3.480
seconds, "doffing" uniform pants takes 10.800 seconds, and
"doffing" a uniform shirt takes 6.420 seconds.
       6
           Washing hands takes 14.640 seconds.
       7
       The time it takes to walk to and from an employee's
workstation varies depending on the location of the workstation.
The shortest walk time to a workstation takes 27.66 seconds, and
the shortest walk time from a workstation takes 26.16 seconds
(for a total of 53.82 seconds per day). The longest walk time to
a workstation takes 2 minutes, 19.56 seconds, and the longest
walk time from a workstation takes 1 minute, 31.74 seconds (for
a total of 3 minutes, 51.3 seconds per day).
       8
       Attached to this dissent are time tables contained in the
record. The tables show how long it takes to "don" and "doff"
various items, to wash hands, and to walk to assigned
workstations.


                                           4
                                                               No. 2014AP1880.mjg


goods, including items such as Hormel Chili, Mary Kitchen Hash,

and   Chi-Chi's   Salsa.   This   process       is   largely   assembly   like:

outside 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

      provides a thermal destruction of organisms, of a
      trillion organisms. It's 12 to the 10th power. So if
      you could imagine a trillion organisms, and whatever
      product it is, it would destroy all the vegetative
      organisms . . . . So through time, an extensive amount
      of time at a high temperature, we're able to eliminate
      those organisms of concern.
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

      9
       The following trial testimony emphasizes just how powerful
the 12-D cook and acidification processes are:

      Q. Ms. Hovde, yesterday there was a hypothetical
      example that was posed to Mr. Ramlo, the plant manager
      at the Beloit facility, and it was regarding a world
      in which Hormel allows street clothes in the Beloit
      facility and doesn't require whites. Now in that
      world,   according  to   the  hypothetical,  an   avid
      fisherman who works at the Beloit facility would
      report to work with fish scales on his clothing and
      worms in his pockets. Based on the 12-D cook process
                                                      (continued)
                                 5
                                                                         No. 2014AP1880.mjg


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,




    you just described, what if those fish scales or those
    worms made their way into a can of Hormel product?
    Would they pose a threat to human safety?

    A. I would argue that the heat process would destroy
    any organisms of concern.

    Q. It might not be desirable to have those items in
    the can –-

    A. Correct.

    Q. –- but         it   certainly        wouldn't     be       a    food    safety
    issue?

    A. Correct.


                                            6
                                                            No. 2014AP1880.mjg

         The USDA and FDA regulations do not require
    employees at the Beloit facility to wear whites. The
    USDA and FDA regulations do not specify who has to own
    or launder the clothing worn by the employees at the
    Beloit facility. Those regulations do not specify
    where the items have to be donned, doffed, and stored.

     . . .

         Hormel employees could wear street clothes at the
    Beloit facility and still comply with USDA and FDA
    regulations. USDA and FDA regulations do not require
    employees at the Beloit facility to keep their shoes
    within the facility. The use of captive or dedicated
    shoes is not the only method to avoid contamination at
    the Beloit plant. Hair covering is left to the
    company's   discretion   under   the   USDA   and   FDA
    regulations but the hair needs to be secured in a
    manner to prevent potential for product adulteration.
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.


                                        7
                                                                          No. 2014AP1880.mjg


      ¶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,

      [a]mong the activities included as an integral part of
      the principal activity are those closely related
      activities which are indispensable to its performance.
      If an employee in a chemical plant, for example,
      cannot perform their principal activities without
      putting on certain clothes, changing clothes on the
      employer's premises at the beginning and end of the
      workday would be an integral part of the employee's
      principal activity. . . .
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.


                                               8
                                                                     No. 2014AP1880.mjg

    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. 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

      10
       Similar to the lead opinion, I will                           also    refer       to
Weissman v. Tyson Foods, Inc., as "Tyson Foods."


                                             9
                                                                         No. 2014AP1880.mjg


"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    (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

       11
       Similar to the lead opinion, I will also refer to
Integrity Staffing Solutions, Inc. v. Busk, as "Integrity
Staffing."


                                                 10
                                                                        No. 2014AP1880.mjg


U.S. 21, 29-30 (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




    12
       I    agree    with   the    lead    opinion's   and    the
concurring/dissenting opinion's conclusion that Tyson Foods need
not be overruled because although the court of appeals applied a
required-benefit test, it went on to discuss whether the
"donning and doffing" under the circumstances present in that
case were "integral and indispensable" to a principal activity.


                                            11
                                                  No. 2014AP1880.mjg


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 (1956), the Court addressed

    whether workers in a battery plant must be paid as
    part of their "principal" activities for the time
    incident to changing clothes at the beginning of the
    shift and showering at the end, where they must make
    extensive use of dangerously caustic and toxic
    materials,   and   are  compelled  by   circumstances,
    including vital consideration of health and hygiene,
    to change clothes and to shower in facilities in which
    the state law required their employer to provide, or
    whether   these   activities   are  "preliminary"   or
    "postliminary" . . . .
350 U.S. at 248 (emphasis added). In answering that question,

the Court looked to the particular circumstances of the battery


    13
       Congress enacted the Portal-to-Portal Act in an effort to
remedy a judicial interpretation of the Fair Labor Standard Act
that if permitted to stand would have "br[ought] about the
financial ruin of many employers" and would have resulted in a
windfall of payments to employees "for activities performed by
them without any expectation of reward beyond that included in
their agreed rates of pay." Integrity Staffing Solutions, Inc.
v. Busk, 135 S. Ct. 513, 517 (2014) (internal quotation marks
omitted) (quoting 29 U.S.C. §§ 251(a)-(b)). The Portal-to-Portal
Act exempted employers from liability for claims based on
"activities which are preliminary to or postlimiary to said
principal activity or activities." Id. (quoting 29 U.S.C.
§ 254(a)). These preliminary or postliminary activities "occur
either prior to the time on any particular workday at which such
employee commences, or subsequent to the time on any particular
workday at which he ceases, such principal activity or
activities." Id. (quoting 29 U.S.C. § 254(a)).




                               12
                                                                               No. 2014AP1880.mjg


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.    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. 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

(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. 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



                                                13
                                                                               No. 2014AP1880.mjg


the principal activity of the employment than in the case of

these employees." Id. at 256.

      ¶160 Mitchell v. King Packing Co., 350 U.S. 260 (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.       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    (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.

                                                 14
                                                                 No. 2014AP1880.mjg

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




                                        15
                                                 No. 2014AP1880.mjg


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:

    Q. Are the whites necessary to avoid contamination at
    the Beloit facility?

    A. No, they're not.

    Q. Can you explain to me why that is?

    A. Again, back to the regulation, there's various
    means to an end. And in that type of environment, in
    the food safety realm, we kind of categorize our
    plants into, you know, maybe high-risk operations. In
    our meat and poultry establishments that produce
    ready, or what we determine to be ready-to-eat exposed
    meat products, those are determined to be high-risk
    operations. Canning operations such as the Beloit


    14
       Although this dissent refers most often to the lead
opinion, the concurring/dissenting opinion suffers from the same
shortfalls because it agrees with the lead opinion's point of
view: "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 Foods Corporation for
which compensation is required," concurrence/dissent, ¶108
(footnote omitted) (citing Lead op., ¶7), and "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," id., ¶117 (citing Lead
op., ¶7).


                               16
                                             No. 2014AP1880.mjg

facility are deemed lower risk due to that 12-D type
cook process, the canning process in general.

Q. Could Hormel allow employees to wear street clothes
at the Beloit facility and still comply with the FDA
regulations?

A. Yes, they could.

Q. And could Hormel allow employees to bring whites
home with them and bring them back to the facility and
still comply with the FDA regulations?

A. Yes, they could. The clothes just need to be clean.

Q. So long as the clothing is clean?

A. That's correct.

Q. Do the FDA regulations require employees at the
Beloit facility to keep their shoes within the
facility?

A. No, they do not.

Q. What, if anything, do the regulations require in
terms of the shoes people wear at the Beloit facility?

A. Again, it's just clean and what we need to prevent
adulteration of the product.

Q. Are captive, or as you've termed it, dedicated
shoe, is that necessary to avoid contamination at the
Beloit facility?

A. No, it's not.

 . . .

Q. Do the FDA regulations require employees at the
Beloit facility to wear the hardhats that you see on
Holly Hormel?

A. No, the FDA regulations do not.

Q. What, if anything, do the FDA regulations require
in terms of hardhats?

A. In terms of hardhats, nothing. As far as hair
covering, they leave it to our discretion. The hair

                          17
                                                 No. 2014AP1880.mjg

    should be secured, a manner secured to prevent the
    potential for product adulteration.

     . . .

    Q. Okay. Do the FDA regulations require employees at
    the Beloit facility to wear safety glasses?

    A. No.

    Q. Do the FDA regulations require employees at the
    Beloit facility to wash their hands?

    A. Again, the regulations are not very specific. It's
    somewhat of a means to an end, and it does describe
    where necessary they should be washing their hands. So
    if they're in direct product contact, they should be
    washing their hands per the FDA regulations.
(Emphasis added.) Similarly, the USDA regulations do not require

"donning and doffing":

    Q. Do the USDA regulations require employees at the
    Beloit facility to wear whites?

    A. No, they do not.

    Q. What, if anything, do the USDA regulations require
    in terms of clothing at the Beloit facility?

    A. Again, it's very open-ended in terms of, you know,
    there's various means to an end. We just have to
    prevent adulteration and the creation of insanitary
    conditions. So essentially clean clothes.

    Q. Do the USDA regulations specify who has to own or
    launder the clothing worn at the Beloit facility?

    A. They do not.

    Q. Do the regulations specify where those items are
    donned and doffed and stored?

    A. No.

    Q. Does wearing the whites at the      Beloit   facility
    comply with the USDA regulations?

    A. Yes, it does.

                               18
                                                                           No. 2014AP1880.mjg

      Q. Are whites necessary to prevent the adulteration of
      product or the creation of insanitary conditions at
      the Beloit facility?

      A. No, they're not.
(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
                                              19
                                                                   No. 2014AP1880.mjg


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:

       A. The clothes that they put on are there for their
       benefit and they're a good manufacturing practice and
       we require it, that's not disputed. But it, it doesn't
       have anything to do with the production of the
       product,   I   guess,  for  lack   of   --   maybe   I'm
       oversimplifying it, but its not required, it -- I'm
       sorry, it's not essential as they make the product, it
       adds nothing to it. Now there are certain food
       manufacturing processes that, you know, perfectly
       clean clothes and, and like a ready-to-eat atmosphere,
       say something like that, we don't have any of those in
       the Beloit plant that it might add some value to it.
       But I can go there today and produce the products and
       do everything that everybody had on that screen other
       than the sanitation job, I can make that product the
       same quality. It's no different. And the key to the
       whole process in the Beloit plant being a cannery is
       that the product is pressure cooked and it's shelf-
       stable. So any microorganisms, that type of thing that
       might be inferred by having perfectly clean clothing
       each   day   really   is   negated   by    the   thermal
       process. . . .
(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:

                                         20
                                                              No. 2014AP1880.mjg


"[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:

    Ms. Collins agreed that she could physically perform
    the tasks she is required to perform at work in
    clothes   she   wore  from  home   but   Ms.  Collins
    continually, and correctly, pointed out that she is
    required to wear those clothes and equipment in order
    to get into the canning part of the plant pursuant to
    Hormel's rules.

    The overwhelming evidence is that Hormel requires                     the
    class member to don and doff those materials                           to
    operate the Beloit facility in compliance with                        the
    federal regulations of USDA, FDA, and OSHA. There                     are
    also efficiencies already noted, an avoidance                          of
    recalls, and customer satisfaction benefits. All                       of
    these benefits are in place for Hormel because                         it
    requires the Class members to don and doff                            the
    clothing and equipment on the premises.

    I further find that the donning and doffing of the
    whites and related gear is indispensable to the
    performance   of    the   class    members' principal
    activities. This is so because Hormel has made it so.
    The only credible evidence is that Class members are
    required to wear these materials . . . ."

    These acts are obligatory, essential, and absolutely
    necessary because Hormel controls the process and has
    required these acts.



                                      21
                                                                        No. 2014AP1880.mjg

    The focus is not on what the United States government
    may require but, instead, what Hormel requires of its
    own employees.

    These activities are controlled by the employer for
    the employer's benefit and are integral to the Class
    members' work.
(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

    15
       Indeed, the circuit court seems to have concluded that
the "donning and doffing" of the "whites" is indispensable
because it is required. This is a conflation of the required-
benefit analysis and the "integral and indispensable" analysis.


                                           22
                                                                       No. 2014AP1880.mjg


"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
       16
       In an attempt to reach its current outcome, the
concurring/dissenting    opinion    distorts   the   analysis   for
lunchtime     "donning      and      doffing."     Although     the
concurring/dissenting opinion believes the "donning and doffing"
of the whites is "integral and indispensable" to "sanitary food
production" at the beginning and end of the day, it concludes
that the same "donning and doffing" of the same "whites" is no
longer   "integral   and    indispensable"    to   "sanitary   food
production" when done over the lunch hour. Concurrence/Dissent,
¶121. The concurring/dissenting opinion states,
                                                        (continued)
                                 23
                                                            No. 2014AP1880.mjg


    ¶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."




    First, no interest 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.

Id., ¶122 (emphasis added). There are two problems with this
conclusion.

     First, the concurring/dissenting opinion focuses on what
Hormel requires and whether Hormel benefits. As laid out in full
earlier, conflating the required-benefit test with the "integral
and indispensable" test goes against the law as clarified by the
Supreme Court of the United States in Integrity Staffing.

     Second, the concurring/dissenting opinion applies the wrong
test by focusing on the employees' choice to leave. The test is
whether the "donning and doffing" of the "whites" when entering
and exiting the Beloit cannery (whether at the beginning and end
of the day or at lunch) is "integral and indispensable" to
canning food. The lead opinion and concurring/dissenting opinion
say it is at the beginning and end of the day. Common sense
would dictate that if "donning and doffing" the "whites" is
"integral and indispensable" to canning food at the beginning
and end of the day, then it must also be "integral and
indispensable" to canning food at the middle of the day after
lunch.


                                    24
                                                                          No. 2014AP1880.mjg


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


                                              25
                                                                       No. 2014AP1880.mjg


every     night . . . ."      Employees      who    work        in    sanitation       wear

different and additional clothing and equipment:

     They will wear--the eyewear is more of a goggles and,
     in addition to a face shield. They also wear--the
     footwear would be different. They're standing in water
     the entire time. So tennis shoes, something like that,
     wouldn't be appropriate. And then they have--we call
     it a rain suit, but it's just a big yellow pants with
     suspenders and a coat that's yellow, too. So it
     protects them. And then they also, I think all of them
     wear arm guards. So you're sealed against the
     chemicals that you work with. Pretty much every job in
     our wet area, you're dealing with chemicals every
     night.
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

     17
       Scott A. Ramlo, plant manager at the Beloit cannery,
testified that some of the chemicals the sanitation crew works
with are "very caustic or acidic and will cause skin damage,
irritation." He went on to say the following:

     Q. I'm sorry? Now,              what,      what      are    the       cleaning
     materials please?

     A. It can be any number of chemicals, but it's a foam
     that comes from a central foaming station that will
     break the surface tension of the product on to the
     stainless steel.  . . . So the foam that he's using
     and applying there is corrosive materials that you
                                                    (continued)
                              26
                                                                      No. 2014AP1880.mjg


     ¶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




     have to be protected from. And he'll spray that. After
     he's done, a quick rinse of the equipment when he
     first got to it, then he'll come and put that foam
     over the entire, all that equipment. You can see it's
     foam because it clings.

(Emphasis added.)
     18
       Interestingly,        the   employees           in   Tyson    Foods    primarily
made pepperonis.
     19
       Scott Ramlo, plant manager at the Beloit facility,
testified, "There are certain things that you should probably do
if you're making bacon or pepperoni or something that somebody's
going to eat right out of the package versus what we do, which
is a thermos-processed product that's fully processed in a can,
very different than some other products."


                                            27
                                                                                No. 2014AP1880.mjg


     ¶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

                                                   28
                                                                    No. 2014AP1880.mjg


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
                               29
                                                             No. 2014AP1880.mjg


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

      20
       As stated previously, we were called upon to determine
whether the de minimis doctrine applies in Wisconsin. This was a
question   of    first   impression    for   this    court.   The
concurring/dissenting opinion appears to adopt the de minimis
doctrine in Wisconsin. It states, "I adopt and apply the Lindow
test . . . .," concurrence/dissent, ¶130, and "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 . . . .," id., ¶109.
But the concurring/dissenting opinion fails to explain why it
chooses to adopt the de minimis doctrine in Wisconsin. Similar
to choosing not to answer the question at all, blind adoption of
the doctrine without any explanation fails to help "develop,
clarify or harmonize the law." Wis. Stat. § 809.62(1r),(1r)(c).


                                       30
                                                                         No. 2014AP1880.mjg


v. Mt. Clements Pottery Co., 328 U.S. 680, 692 (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.

      ¶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;   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

                                           31
                                                    No. 2014AP1880.mjg


(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,


    21
       If we adopt this approach, then one possible way of
resolving this issue would be as follows: (1) if a court
concludes that an activity is not "integral and indispensable,"
then the analysis ends and no compensation is owed; but (2) if a
court    concludes   that   an   activity   is   "integral   and
indispensable," then it must next consider whether the time
spent on that activity is so short in duration that it qualifies
as de minimis, in which case the time is not compensable. Under
this    approach,   because    the    lead  opinion    and   the
concurring/dissenting opinion concluded that the time spent
"donning and doffing" is "integral and indispensable," they
would need to then consider whether that time is so short in
duration that it qualifies as de minimis. If it qualifies as de
minimis, then no compensation is due.
    22
       Simply put, the lead opinion had an abundance of options
in this case, but it chose none. The lead opinion could have
concluded that the de minimis doctrine does not apply in
Wisconsin. The lead opinion could have concluded that the de
minimis doctrine applies in Wisconsin and then provided a
practical framework for how to conduct a de minimis analysis.
The lead opinion could have concluded that the de minimis
doctrine applies and then held that the 2.903 minutes spent
donning and doffing each day was too long in duration to qualify
as de minimis. Rather than choose any of the above options, the
lead opinion picked an outcome and reached a conclusion for
these litigants on this day.


                                 32
                                                               No. 2014AP1880.mjg

       Assuming, without deciding, that the de minimis
       doctrine is applicable to claims under Wis. Admin.
       Code § 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."
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.

Clements Pottery Co., 328 U.S. 680 (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. 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.

       ¶186 In resolving that question, the Court noted,

       23
        The concurring/dissenting opinion also notes that the
lead opinion dodges the question of whether the de minimis
doctrine applies in Wisconsin: "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." Concurrence/Dissent, ¶1125 (emphasis
added).


                                       33
                                                                     No. 2014AP1880.mjg

       When the matter in issue concerns only a few seconds
       or minutes of work beyond the scheduled working hours,
       such   trifles   may   be   disregarded.   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 the employee is
       required to give up a substantial measure of his time
       and effort that compensable working time is involved.
Id. at 692 (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   (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

       24
       Again unsurprisingly, the concurring/dissenting opinion
also gives Anderson, the Supreme Court of the United States
decision that created the de minimis doctrine, a fleeting
glance. The concurring/dissenting opinion mentions Anderson a
meager three times in its entire de minimis discussion, which
spans approximately five pages. See Concurrence/Dissent, ¶¶126,
128, 131. Rather than rely on a Supreme Court decision, the
concurring/dissenting opinion roots its analysis in a Ninth
Circuit opinion, Lindow v. United States, 738 F.2d 1057 (9th
Cir. 1984). In fact, the concurring/dissenting opinion formally
                                                    (continued)
                               34
                                                 No. 2014AP1880.mjg


found in Anderson) in which to ground its conclusion.25 The lead

opinion states,

     [i]n 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."
Lead op., ¶102 (emphasis added).26

"adopt[s] and appl[ies] the Lindow test." Concurrence/Dissent,
¶130.

     Lindow is cited by federal courts for its four-factor de
minimis approach. Under Lindow, a de minimis determination looks
at (1) the amount of daily time spent on the additional work,
(2) the administrative difficulty in recording that additional
time, (3) the aggregate amount of compensable time, and (4) the
regularity of the additional work. 738 F.2d at 1062-63. Missing
from the concurring/dissenting opinion's discussion of Lindow is
a critical quote from Lindow: "Most courts have found daily
periods of approximately 10 minutes de minimis even though
otherwise compensable." Id. at 1062. Lindow itself stands for
the proposition that the 7 to 8 minutes employees spent on
activities qualified as de minimis. Id. at 1063-64.
     25
       The lead opinion does not cite Lindow, but it arguably is
where the lead opinion hand-picked the aggregate sum factor. If
so, the lead opinion conveniently forgot to look at the first
factor: "the amount of daily time spent on the additional work."
Lindow, 738 F.2d at 1062 (emphasis added).
     26
       The   concurring/dissenting  opinion   also  utilizes   an
aggregate sum factor: "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."
Concurrence/Dissent, ¶136 (emphasis added). Not only is the lead
opinion's and the concurring/dissenting opinion's seemingly
outcome oriented choice to ground their analyses in an aggregate
sum factor not supported by the law (namely, Anderson), but also
their outcome leads to disparate treatment under the law. A de
minimis analysis that is focused on a dollar figure will favor
                                                      (continued)
                                35
                                                                  No. 2014AP1880.mjg


    ¶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     outright      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 (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).




those employees who are paid a higher wage. Employees who make
only $5 per hour and file a wage and hour claim will have their
aggregate sum declared de minimis, but employees who make $22
per hour will have their aggregate sum declared not de minimis.
Perhaps this is why Anderson's focus was on time, and whether
the activity concerned just a few "minutes or seconds."


                                         36
                                                             No. 2014AP1880.mjg




       ¶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


       27
       The concurring/dissenting opinion also creeps past the
time predicament but does so in a different way. The
concurring/dissenting opinion concludes,

       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 would appear to be a nearly impossible
       administrative task for Hormel.

Concurrence/Dissent,   ¶109.   In   sum,  because  the   parties
stipulated to 5.7 minutes, 5.7 minutes is not de minimis.
Otherwise, 5.7 minutes would be de minimis. According to the
concurring/dissenting opinion, this time becomes de minimis if
it is not cabined because "if Hormel were required to record for
payroll purposes the varying amounts of the 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." Id., ¶132;
see also id., ¶¶ 109, 135, 138, 140.

     The   problem  with  the   concurring/dissenting   opinion's
conclusion that it "would appear to be" an administrative
impossibility to accurately record the time is that the circuit
court made the exact opposite finding of fact in its opinion and
order. The circuit court spent nearly two and a half pages in
its order and opinion specifically addressing whether it would
be administratively difficult for Hormel to accurately record
"donning and doffing" time. Indeed, the section of the circuit
                                                      (continued)
                               37
                                                           No. 2014AP1880.mjg


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.



court's opinion and order is titled "Practical Administrative
Difficulties." There, the court stated,

    Despite carrying the burden of proof on the de minimis
    issue, I find that Hormel has not provided credible
    evidence of administrative difficulties which may be
    encountered if it is required to record the additional
    donning and doffing time. As a result, factor two [of
    the Lindow test] also falls in favor of the Class.

(Emphasis added.) Later, the circuit court again emphasized that
"the vague and unsubstantiated opinions of Hormel employees
about the administrative difficulties of reimbursing the Class
members for donning and doffing are belied by the daily
activities at the Beloit Hormel plant. . . . Hormel's processes
show that it is able to monitor [employees] adequately."
(Emphasis added.) Thus, the concurring/dissenting opinion's
conclusion that it "would appear to be" an administrative
impossibility to record the time spent "donning and doffing" is
directly contrary to the circuit court's explicit finding of
fact on that point. The concurring/dissenting opinion "appears"
to ignore the circuit court's opposite finding of fact, as it
fails to acknowledge the circuit court's factual finding and
fails to provide any discussion of whether the circuit court's
finding would be clearly erroneous.


                                    38
                                                           No. 2014AP1880.mjg


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.




                                    39
     No. 2014AP1880.mjg




40
     No. 2014AP1880.mjg




41
     No. 2014AP1880.mjg




42
    No. 2014AP1880.mjg




1
