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CCH® PAYROLL — 09/09/10

FLSA did not preempt state law in Kraft donning, doffing case

Employees at a Kraft Foods meat products plant in Wisconsin were entitled to pay for time spent donning and doffing safety gear, ruled the Seventh Circuit, in what it noted was likely "the first time an employer's argument that Section 203 [of the FLSA] preempts state law has reached a court of appeals." The appeals court affirmed a federal district court in Wisconsin, concluding it correctly determined that FLSA Section 203(o), which allows labor and management to exclude pay for time spent donning and doffing safety gear through collective bargaining, did not preempt a Wisconsin state law that required payment for such activity.

Kraft required employees who prepared meat products to wear safety gear to protect food from contaminants. It took each worker a few minutes to put on and take off these items. Section 203(o) of the FLSA permits an employer to trade off with a union, allowing workers to bargain for a higher wage rate in exchange for excluding this time from compensation. Kraft and the union did so here, agreeing in their collective bargaining agreement (CBA) that the donning and doffing time would not be compensable. The employees disagreed with the trade-off struck by the parties, and wanted compensation for the donning and doffing time.

A Wisconsin statute requires that time spent donning and doffing safety gear is to be compensated at the minimum wage or higher; this time is to be counted towards the 40-hour workweek before the overtime rate applies. Under Section 218(a) of the FLSA, states are free to set higher hourly wages, or shorter periods, before overtime pay comes due. Thus, if Wisconsin had provided for a minimum hourly wage exceeding the rate in the bargaining agreement, then state law would trump the CBA. The appeals court rejected Kraft's assertion that Wisconsin was meddling with collective bargaining. Nothing in the Wisconsin statutes gave a state court or state official any role in interpreting or enforcing the CBA. What Wisconsin requires is that the CBA be ignored to the extent that it sets lower wages or hours than state law specifies. Thus, the district court did not err in concluding that the employees were entitled to be paid for all working time required under Wisconsin law. (Spoerle v Kraft Foods Global, Inc, 7thCir, 160 LC ¶35,792.)

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