By a 6-4 vote accompanied by an unusual set of dissenting and concurring opinions, the U.S. Court of Appeals for the Seventh Circuit declined to review en banc the prior decision by a divided three-judge panel affirming dismissal of a lawsuit filed on behalf of unionized poultry processing plant workers seeking compensation for time spent donning and doffing protective and sanitary clothing at the start and end of their meal periods.

In Mitchell v. JCG Industries, Inc., the employees contended that the time spent changing clothes was compensable because FLSA Section 3(o) only excludes from compensation “any time spent in changing clothes at the beginning or end of each workday. . . by the express terms of or by custom or practice under a bona fide collective-bargaining agreement.” The majority of the three judge panel that originally heard the appeal rejected the plaintiffs’ argument that changing clothes at the beginning and end of the meal period was not “at the beginning or end” of the workday and thus not subject to the Section 3(o) exclusion, and concluded that workers given a 30-minute meal period are “in effect working two four-hour workdays in an eight-and-a-half hour period.”

The panel majority was mindful of the U.S. Supreme Court’s comment in Sandifer v. U.S. Steele Corp. that the de minimis doctrine “did not fit comfortably within” Section 3(o), and instead relied on a different aspect of Sandifer to support its ruling. In Sandifer, the Supreme Court looked at whether the “vast majority” of time at issue was spent on changing clothes to determine if the whole changing period was non-compensable.  Similarly, in Mitchell, the panel majority found the “vast majority” of the meal period was not spent donning and doffing and thus was non-compensable time.

In the decision denying the en banc re-hearing Judge Ann Claire Williams, writing for the four dissenting judges, argued that the case should have been heard en banc because the panel decision “calls into question the application of the ‘continuous workday’ doctrine of the [FLSA], erroneously applies de minimis analysis to the FLSA in contravention of Supreme Court precedent, and improperly applies the summary judgment standard under [Rule 56].” Judge Williams expressed concern that the panel majority’s division of the work day into two parts “will spell the end of the ‘continuous work-day’ doctrine,” would “allow employers to negotiate away otherwise compensable time,” i.e., donning and doffing time before and after meal periods, and failed to explain when this “exception” to the continuous workday doctrine would apply. Judge Williams further argued that the Supreme Court’s Sandifer decision stated that an entire donning and doffing period cannot be written off as de minimis, as the majority’s decision had done.  Finally, Judge Williams claimed that the panel majority misapplied the summary judgment standard by not viewing the evidence in the light most favorable to the nonmoving party.  Specifically, she took issue with the panel majority’s decision discounting a plaintiff’s affidavit that it took her 10-12 minutes per meal period to don and doff clothing.

In response, Judge Posner stated that the panel’s decision did not meet the Seventh Circuit’s standard for en banc review because it did not create any intracircuit or intercircuit conflict or involve a “question of exceptional importance.”  Such disputes, he pointed out, “can be and usually are resolved in collective bargaining negotiations without generating litigation. A reversal might disrupt labor relations in a variety of industries, besides poultry processing, by allowing a class action suit to override arrangements agreed upon in collective bargaining agreements.”

As to the continuous workday issue, Judge Posner endorsed the employer’s opposition to the petition for rehearing en banc, which emphasized that "it would be absurd to allow CBAs [collective bargaining agreements] to exclude donning and doffing time when arriving at and leaving the work site, but prohibit those same CBAs from doing the same thing as to the same activity by the same employees at the beginning and end of the lunch break.” In addition, Judge Posner stated, citing the DOL’s regulation as paraphrased by the Supreme Court, the term “workday” means “in general, the period between the commencement and completion on the same workday of an employee's principal activity or activities,” but need not always mean the entire interval between the worker's arrival at work at the beginning of the day and his departure for home at the end of the day.  To support his point, Circuit Judge Posner gave the example of a family who hires a nanny to come to their home from 7 a.m. to 9 a.m. to get the kids ready for school, and to return at 3 p.m. and stay until 8 p.m. when the kids go to bed. The nanny’s work day would not be 13 hours (7 a.m. to 8 p.m.), but rather seven hours (7 a.m. to 9 a.m. and 3 p.m. to 8 p.m.). 

Finally, Circuit Judge Posner addressed the "de minimis" issue.  First, he pointed out that in Sandifer, the Supreme Court essentially “wrote off” the time spent putting on and taking off the non-clothing items.  “Donning and doffing protective equipment just wasn't a big deal; in this case donning and doffing sanitary gear during the lunch break is likewise not a big deal.”  Second, he pointed out that, as a practical matter, “it is infeasible to determine the time it takes to doff and don, because every worker will don and doff at a different rate unless monitored by supervisors, which would be a cost borne ultimately by the workers. Such monitoring would also be “obnoxious.’ Imagine supervisors shouting ‘you have 20 seconds to finish putting on the last item of your sanitary gear!’” Last, Judge Posner affirmed the majority panel position that “no reasonable jury” would have credited the plaintiffs’ contention that it took 10 to 15 minutes to put on protective clothing such as an apron and hairnet.  Judge Posner noted that the plaintiffs must have agreed because in their petition for re-hearing they added, for the first time, additional tasks that they now claimed were included in the 10-15 minute donning and doffing period, including storing the protective clothing for reuse, walking to a sink, and waiting in line to wash.

The plaintiffs' only remaining recourse is to seek review by the Supreme Court.