As discussed in yesterday’s post, in Mitchell, the Seventh Circuit affirmed a district court’s decision dismissing an FLSA and Illinois Minimum Wage Law claim where unionized poultry processing plant workers alleged they had not been compensated for time spent donning and doffing protective and sanitary clothing at the start and end of their meal periods.

I mentioned yesterday that this opinion reminded me of another case before a panel that included Judge Posner from my days at the Social Security Administration’s General Counsel’s office. That case involved a limited issue addressing the district court’s decision not to award attorney’s fees under the Equal Access to Justice Act. However, Judge Posner spent nearly the entire oral argument questioning us about the difference between COPD and emphysema. His curiosity was on full display, but did not bleed into the final opinion in that case.  This time, in Mitchell, that curiosity may bleed into the opinion.

In Mitchell, the workers advanced two theories. The first, discussed in yesterday’s post, was a novel argument about their “workday” (answered by an equally novel opinion). The workers’ second theory was that the time spent donning and doffing was not “de minimis” because, according to their affidavits, it took them between 10 and 15 minutes to change in and out of their clothing and gear. The company had countered with its own affidavits that the tasks took just a few minutes at most. The district court had granted summary judgment for the company, agreeing with its calculations.

After concluding that it would be difficult for the trial level court to come to a factual conclusionon the matter, the opinion states that “one of us” in the majority conducted a “novel” experiment, videotaping three members of the court’s staff donning and doffing the same clothing as if they were plant workers, and found that the process took less than two minutes. Although the experiment is mentioned, the Court included the disclaimer that the videotape (which was not released by the court) “was not ‘evidence’” and that the intent of the experiment was only to “satisfy curiosity rather than to engage in appellate fact-finding.” However, the majority continued by acknowledging that it did rely on the information to confirm “the common sense intuition that donning and doffing” would not “eat up half the lunch break.”

While denying it was doing so, the majority appears to have attempted to develop factual evidence in the name of common sense. Judge Wood strongly criticized the majority for its experiment.

Because the opinion simply described the results depicted on the videotape, rather than making the video available for the parties and the public to review, we don’t know the outcome of the actual experiment. While the plaintiffs’ assertions about the length of time to don and doff the clothing stretch the bounds of credulity in my opinion, it is unsettling that we are left with nothing more about the videotape than a statement that the court staff was neither “rushing nor dawdling.”

Insights for Employers and Practitioners

Attorneys, don’t try experiments like these in your own employment cases. Rule 10 of the Federal Rules of Appellate Procedure (FRAP) states that “If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcript of all evidence relevant to that finding or conclusion.” Indeed, appellate courts and trial courts routinely criticize parties that suggest facts outside of the record.

What is most perplexing about this opinion is that the majority’s “experiment” introduced an improvisational element to a relatively straightforward de minimis case. Keep in mind, though, that this is just one panel’s opinion. Courts do not generally decide a case in chambers, even in part, based on evidence they generate on their own.

The employer appears to have won this case based on common sense. However, employers and practitioners should not expect to cite this decision as breaking new ground in the world of donning and doffing cases. The DOL is unlikely to change its opinion about the continuous workday, and the Court’s novel interpretation may not gain traction in appellate courts, even within other panels of the Seventh Circuit. Most importantly, the novel outcome here gives me another opportunity to repeat (as I do whenever I give presentations on FLSA issues) that litigation is not only expensive, it is unpredictable. As I said yesterday, novel theories can lead to novel outcomes, and those may or may not be positive for you. The employer’s “win” was still an expense in time, money and resources…To avoid this in the future, one approach to consider is to address obvious donning and doffing issues during collective bargaining, through company policies and, most importantly, in communications with employees.

The bottom line: the way to “win” cases like these is to proactively address the situations that can lead to litigation.