United Food v. Hormel Foods Corporation

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Appeal No. 2014AP1880 Cir. Ct. No. 2010CV2595

WISCONSIN COURT OF APPEALS
DISTRICT IV

UNITED FOOD & COMMERCIAL WORKERS UNION,
LOCAL 1473, DENNIS A. WARNE, CHARLES R. SEELEY

AND PAMELA COLLINS,
FILED
PLAINITIFFS-RESPONDENTS,
DEC 23, 2014
V.
Diane M. Fremgen

HORMEL FOODS CORPORATION, Clerk of Supreme Court

DEFENDANI-APPELLANT.

CERTIFICATION BY WISCONSIN COURT OF APPEALS

Before Blanchard, P.J., Lundsten and Kloppenburg, JJ.

This appeal arises from a class action lawsuit by unionized workers
at a Hormel plant seeking compensation for time spent donning and doffing
clothing and equipment that the workers are required by their employer to wear
while processing food and to remove before leaving the facility. Pursuant to WIS.
STAT. RULE 809.61 (2011-12), this court certifies the appeal to the Wisconsin
Supreme Court for its review and determination of two questions.

First: Is the donning and doffing of clothing that is required by the
employer, occurs on the employer’s premises, and benefits the employer “integral”

and “indispensable” to the principle work activities of the employees—and

therefore compensable under Chapters 103 and 109 of the Wisconsin Statutes and

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WIS. ADMIN. CODE § DWD 272.12 (Feb. 2009)—even if the employees’ tasks
could be performed without the required clothing and equipment?
Second: Even if donning and doffing required work clothing and
equipment is deemed “integral” and “indispensable” to the employees’ work
activities, is it nonetheless rendered non-compensable by the doctrine of de
minimis non curat lex?
The first issue appears to be controlled by our decision in Weissman
v. Tyson Prepared Foods, 2013 WI App 109, 350 Wis. 2d 380, 838 N.W.2d 502.
Hormel advances several reasons it believes that Weissman was erroneously
decided. Since we are bound by our own decisions, we cannot meaningfully
address a claim that Weissman should be modified or overruled. However, we
note that the Wisconsin Supreme Court previously granted a petition for review in
Weissman, but did not issue a decision on the merits because the parties settled the
case. This appeal therefore presents another opportunity for the Wisconsin
Supreme Court to consider the application of the “integral and indispensable” test
for compensation in a “donning and doffing clothing” case under Wisconsin law.
The second issue—whether to treat the activity as de minimis—was
noted but not addressed in our decision in Weissman. It appears to be one of first
impression in this state. Because resolution of the issue could involve a decision
whether, or how closely, to follow or deviate from federal case law interpreting
analogous federal statutes and administrative code provisions, the Wisconsin
Supreme Court would appear to be the most appropriate forum for hearing it.
Finally, we note that United Food & Commercial Workers Union
Local 538 has requested permission to file a nonparty amicus brief. We will hold

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that motion in abeyance pending the decision of the Wisconsin Supreme Court
whether to certify the appeal.