IN THE
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF MINNESOTA
______________________________________ |
|
|
|
) |
|
THOMAS DEGE, LOREN SCHMELING, |
) |
|
JAFAR BIHI, FARHIA HASSAN, AHMED |
) |
|
AHMED, ABDI GAARI, AND |
) |
|
BRUCE FLINT, |
) |
|
|
) |
No.
06-3754 (DWF/RLE) |
Plaintiffs, |
) |
|
|
) |
|
v. |
) |
|
|
) |
|
HUTCHINSON TECHNOLOGY, INC., |
) |
|
|
) |
|
Defendant. |
) |
|
______________________________________ |
) |
|
TABLE OF CONTENTS
ISSUES
FACTS
ARGUMENT
A.
Employees' Donning and Doffing of Clean Room Gear
Constitutes "Work" Under the FLSA
B.
Donning and Doffing Clean Room Clothing Is Integral and
Indispensable to Plaintiffs' Principal Activities and Therefore Is Not Excluded
from Compensable Time by the Portal Act
C.
HTI Cannot Rely on a "De Minimis" Defense to Avoid
Paying its Employees for Time Regularly Spent Donning and Doffing
CONCLUSION
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
Back to Top
SECRETARY OF LABOR'S BRIEF AS AMICUS
CURIAE
IN SUPPORT OF PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Pursuant to this Court's Order dated August 15, 2007 (Doc. No. 174), the
Secretary hereby submits this Brief as Amicus Curiae in Support of
Plaintiffs' Motion for Partial Summary Judgment.
ISSUES
(1) Whether donning and doffing required gear is "work" under the Fair Labor
Standards Act of 1938 ("FLSA"), 29 U.S.C. 201 et seq.;
(2) Whether such donning and doffing is integral and indispensable to
Plaintiffs' principal work activities, and therefore is not excluded from
compensable time by the Portal-to-Portal Act of 1947 ("Portal Act"), 29 U.S.C.
251 et seq.; and
(3) Whether the de minimis doctrine applies to the time Plaintiffs regularly
spend donning, doffing, walking, and waiting each working day.[1]
FACTS
[2]
Hutchinson Technology, Inc. ("HTI") manufactures disk drive suspension
assemblies and medical devices. Def.'s Mem. at 2; February 22, 2007 Mem. Op.
and Order at 1-2 ("2/22/07 MO&O") (Doc. No. 53). Plaintiffs are HTI employees
who are, or were, required to don and doff clean room gear to perform their job
duties. Pls.' Mem. of Law in Supp. of Pls.' Mot. for Partial Summ. J. at 3-4
("Pls.' Mem.") (Doc. No. 134); 2/22/07 MO&O at 5 n.2; August 30, 2007 Order at 1
(Doc. No. 178).
HTI requires employees who work in clean areas to wear a hairnet or
"bouffant," a facemask, a smock or "frock," latex-like gloves, and a beard
guard, if necessary. Def.'s Mem. at 3; Pls.' Mem. at 3; 2/22/07 MO&O at 2.
This clothing protects the company's products from contamination from dust,
lint, body contaminants, or other airborne substances. Def.'s Mem. at 3; Pls.'
Mem. at 3; 2/22/07 MO&O at 2. Individuals put on and take off this clothing in
designated "gowning areas" near entrances to the clean rooms. Def.'s Mem. at 4.
Gowning areas are located throughout HTI's facilities. Id. Employees
are required to remove their clean room clothing when they leave the clean areas
and put the clothing back on when they return. Id. HTI has a preferred
sequence for gowning and ungowning. Id. at 5. Employees can be
disciplined for not gowning or for gowning improperly. Pls.' Mem. at 4. HTI
recently implemented a new auditing procedure to ensure that production
operators are gowning properly. Id. at 6.
HTI "takes a somewhat relaxed approach to timekeeping." Def.'s Mem. at 7.
The company does not have a centralized timekeeping system. Id.
Instead, employees work with their supervisors to record their time in one of
several ways. Id. at 8. Some of the methods used include having
employees (or their supervisors) fill out handwritten timesheets, or simply
initial pre-printed time on a form, marking any exceptions from the employee's
normal schedule. Id. In some cases, employees may record their time in
advance based on their scheduled shifts. Id. While the exact start and
end times vary slightly (generally by a few minutes) across different
departments and plants, most employees work shifts that are approximately 12
hours long and run from around 5:55 a.m. or p.m. to about 6:00 p.m. or a.m. Id.
at 6.
HTI pays its employees based on their scheduled shifts, subject to any
exceptions that the employee or her supervisor may have recorded, and rounded to
the nearest 15 minutes. Def.'s Mem. at 12. HTI does not pay its employees
based on when they begin gowning, Pls.' Mem. at 4, and prohibits employees from
entering the time they begin gowning as their shift start time. Id. at
6. Because HTI only pays its employees from their official shift start time
until their official shift end time, employees generally are not paid for
donning and doffing. Id. at 4, 5; Def.'s Mem. at 5. HTI has not
disputed Plaintiffs' contention that "time-keeping technology is available to
record gowning, walking, and waiting times," Pls.' Mem. at 4. See Def.'s
Mem. at 27, 28.
Back to Top
ARGUMENT
A. Employees' Donning and Doffing of Clean Room Gear
Constitutes "Work" Under the FLSA
The FLSA generally requires employers to compensate covered employees at one
and one-half times their regular rate of pay for all hours worked in excess of
forty hours in a workweek. See 29 U.S.C. 207(a)(1). The statute
reflects "a Congressional intention to guarantee either regular or overtime
compensation for all actual work or employment." Tenn. Coal, Iron & R.R. v.
Muscoda Local No. 123, 321 U.S. 590, 597 (1944).
The FLSA does not specifically define the terms "work" or "workweek." [3]
However, the Supreme Court has construed these terms broadly. In Tennessee
Coal, the Court defined "work" "as meaning 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 and his business."
321 U.S. at 598. The Court subsequently clarified that this definition was "not
intended as a limitation on the Act," and that even non-exertional acts, such as
waiting, can be "work" under the FLSA. Armour & Co. v. Wantock, 323 U.S.
126, 133 (1944); see IBP, Inc. v. Alvarez, 546 U.S. 21, 25 (2005)
(Armour "clarified that 'exertion' [i]s not in fact necessary for an
activity to constitute 'work' under the FLSA.").
In Anderson v. Mt. Clemens Pottery Co., the Supreme Court defined the
"statutory workweek" for which employees must be compensated as including "all
time during which an employee is necessarily required to be on the employer's
premises, on duty or at a prescribed workplace." 328 U.S. 680, 690-91 (1946).
The Court specifically concluded that turning on lights, putting on aprons and
coveralls, removing shirts, taping or greasing arms, and putting on finger cots
constitute "work" under the FLSA for which employees must be paid. Id.
at 692-93.
Plaintiffs' donning and doffing of clean room gear and associated walking
before, during, and after their shifts, clearly constitute "work" under the FLSA
because HTI requires or controls these activities, and they are performed solely
for HTI's benefit. See Barrentine v. Arkansas-Best Freight Sys., Inc.,
750 F.2d 47, 50 (8th Cir. 1984) (pre-trip safety inspection of trucks required
and controlled by employer and for employer's benefit constitutes "work");
see also De Asencio v. Tyson Foods, Inc., No. 06-3502, 2007 WL
2505583, at *10 (3d Cir. Sept. 6, 2007) (donning and doffing sanitary and
protective clothing by poultry workers constitutes "work"); Ballaris v.
Wacker Siltronic Corp., 370 F.3d 901, 911-12 (9th Cir. 2004) (donning and
doffing clean room "bunny suits" constitutes "work" under the FLSA because it is
"activity, burdensome or not, performed pursuant to [the employer's] mandate for
[its] benefit as an employer.") (internal quotation marks and citation omitted).
Back to Top
HTI admits that it requires all employees working in clean room areas to wear
a hairnet, a facemask, a smock, latex-like gloves, and a beard guard, if
necessary. Employees must don this clothing before entering the clean areas and
must doff it when they leave the clean areas. HTI specifies the order in which
employees must don and doff this clothing, and employees can be disciplined for
not gowning or for gowning improperly. The company performs audits to ensure
that production operators are gowning properly. Gowning areas are separate from
the employees' workstations; therefore, employees must walk between the gowning
areas and their workstations when they don and doff. These facts unequivocally
establish that HTI requires and controls the donning and doffing of clean room
clothing and any associated walking.
Plaintiffs' donning and doffing of clean room clothing and associated walking
also are "pursued necessarily and primarily for the benefit of the employer."
Alvarez v. IBP, Inc., 339 F.3d 894, 902 (9th Cir. 2003) (internal
quotation marks and citation omitted), aff'd, 546 U.S. 21 (2005). HTI
requires its employees to wear this clothing to protect the company's products
from contamination from dust, lint, body contaminants, or other airborne
substances. This allows HTI to produce a "quality product," which inures to the
company's benefit. See, e.g., "Photo Etch Guidelines & Procedures," Ex.
2, at 9 to Aff. of Joshua T. Hoffman in Opp'n to Pls.' Mot. for Partial Summ. J.
("Hoffman Aff.") (Doc. No. 154) ("Providing our customers with quality product
is an important part of our business and failure to follow these guidelines &
procedures [including those addressing contamination and gowning] may compromise
the quality of our product."); "Trace Guidelines and Procedures," Ex. 1, at 7 to
Hoffman Aff. (same). Thus, these activities are clearly "work" under the FLSA.
HTI argues that "activities of the sort for which plaintiffs seek
compensation are so trivial . . . that it is not 'work' within the meaning of
the FLSA." Def.'s Mem. at 36 (citing Reich v. IBP, Inc., 38 F.3d 1123,
1126 (10th Cir. 1994) and Anderson v. Pilgrim's Pride Corp., 147 F. Supp.
2d 556, 561 (E.D. Tex. 2001), aff'd, 44 F. App'x 652 (5th Cir. 2002)).
The cases HTI relies on to make this cursory point are neither convincing, nor
binding on this Court.
The courts in Reich v. IBP and Pilgrim's Pride concluded that
donning and doffing certain protective gear is not work because it does not
involve "physical or mental exertion." Reich v. IBP, 38 F.3d at 1125-26;
Pilgrim's Pride, 147 F. Supp. 2d at 561. A number of other courts have
expressly rejected these courts' holdings. See, e.g., De Asencio,
2007 WL 2505583 at *9-10 (rejecting Reich v. IBP's holding that "work"
requires exertion, and concluding that the "better view" is that stated by the
Ninth Circuit in Ballaris); Ballaris, 370 F.3d at 910-11 (noting
that the Ninth Circuit in Alvarez, 339 F.3d at 902, expressly rejected
Reich v. IBP's holding); Davis v. Charoen Pokphand (USA), Inc., 302
F. Supp. 2d 1314, 1322 n.8 (M.D. Ala. 2004) ("[E]ven an activity which 'takes
seconds' and 'requires very little concentration,' can be work if it is 'pursued
necessarily and primarily for the benefit of the employer.'") (citations
omitted); Fox v. Tyson Foods, Inc., No. 99-BE-1612, 2002 WL 32987224, at
*9 (N.D. Ala. Feb. 4, 2002) (order adopting magistrate judge's report and
recommendation) (rejecting Reich v. IBP's reasoning). Moreover, the
Supreme Court's recent decision in Alvarez makes abundantly clear that
exertion is not necessary for an activity to constitute "work." See 546
U.S. at 25, 30; see also De Asencio, 2007 WL 2505583 at *8 ("[W]e
conclude that Alvarez not only reiterated the broad definition of work,
but its treatment of walking and waiting time under the Portal-to-Portal Act
necessarily precludes the consideration of cumbersomeness or difficulty on the
question of whether activities are 'work.'"). That decision severely undermines
the continued validity of Reich v. IBP. See De Asencio,
2007 WL 2505583 at *8-9; Garcia v. Tyson Foods, Inc., 474 F. Supp. 2d
1240, 1246 (D. Kan. Feb. 16, 2007); Lopez v. Tyson Foods, No. 06-459,
2007 WL 1291101, at *3 (D. Neb. Mar. 20, 2007).
Back to Top
B. Donning and Doffing Clean Room Clothing Is Integral and
Indispensable to Plaintiffs' Principal Activities and Therefore Is Not Excluded
from Compensable Time by the Portal Act
The Portal Act creates a limited exception to the FLSA's general rule that an
employer must compensate its employees for all hours worked. Section 4(a) of
the Portal Act relieves an employer of responsibility for compensating employees
for:
(1) walking, riding, or traveling to and from the
actual place of performance of the principal activity or activities which such
employee is employed to perform, and
(2) activities which are preliminary to or
postliminary to said principal activity or activities,
which 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.
29 U.S.C. 254(a).[4]
The Portal Act was designed to "preserve to the worker the rights he has
gained under the Fair Labor Standards Act." 29 C.F.R. 790.2(a) (quoting 93
Cong. Rec. 2297, 2300 (1947) (statement of Sen. Cooper)). Consistent with this
congressional intent, "the terms 'principal activity or activities' . . . are to
be read liberally." Barrentine, 750 F.2d at 50; see Dunlop v.
City Elec., Inc., 527 F.2d 394, 398 (5th Cir. 1976) (terms must be construed
liberally "to encompass 'any work of consequence'"); 29 C.F.R. 790.8(a) (same).
By its terms, the Portal Act only excludes traveling and other preliminary
and postliminary activities when they occur outside the workday, which is
defined as "the period between the commencement and completion on the same
workday of an employee's principal activity or activities." 29 C.F.R. 790.6(b);
see 29 U.S.C. 254(a); Alvarez, 546 U.S. at 28-29. This principle,
known as the "continuous workday" rule, requires an employer to pay an employee
for any activity that occurs between the first and last principal activities of
the employee's workday. See Alvarez, 546 U.S. at 28 (quoting 29
C.F.R. 790.6(a)). Thus, "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 excluded from the scope of
[Section 4(a)], and as a result is covered by the FLSA." Alvarez, 546
U.S. at 37. The principle applies to waiting time as well. See id.
at 40.
The Supreme Court has established that "activities performed either before or
after the regular work shift, on or off the production line, are compensable
under the portal-to-portal provisions of the Fair Labor Standards Act if those
activities are an integral and indispensable part of the principal activities
for which covered workmen are employed." Steiner v. Mitchell, 350 U.S.
247, 256 (1956). Further, "any activity that is 'integral and indispensable' to
a 'principal activity' is itself a 'principal activity' under § 4(a) of the
Portal-to-Portal Act." Alvarez, 546 U.S. at 37. Such an activity
commences the continuous workday, and marks the beginning of compensable time.
See id.[5]
An activity is integral and indispensable to a principal activity if it is
"performed as part of the regular work of the employees in the ordinary course
of business." Dunlop, 527 F.2d at 401. This essentially is a functional
test, focusing on the relatedness of the activity to the primary duties of the
job. See 29 C.F.R. 790.8(c) ("Among the activities included as an
integral part of a principal activity are those closely related activities which
are indispensable to its performance."). Thus, "[t]o be 'integral and
indispensable,' an activity must be necessary to the principal work performed
and done for the benefit of the employer." Alvarez, 339 F.3d at 902-03
(citing Barrentine, 750 F.2d at 50 and Dunlop, 527 F.2d at 398);
see Lee v. Am‑Pro Protective Agency, Inc., 860 F. Supp. 325, 327
(E.D. Va. 1994) (same); cf. Bonilla v. Baker Concrete Constr., Inc.,
487 F.3d 1340, 1344 (11th Cir. 2007) (an activity is integral and indispensable
to a principal activity if the activity is required by the employer, necessary
for the employee to perform her duties, and primarily for the benefit of the
employer).
Back to Top
In Steiner, the Supreme Court specifically held that pre- and
post-shift clothes changing on an employer's premises can be integral and
indispensable to an employee's principal activities. See Steiner,
350 U.S. at 249, 254-58. The Court found persuasive Senator Cooper's statement
during debate on the Portal Act that "if the employee could not perform his
activity without putting on certain clothes, then the time used in changing into
those clothes would be compensable." Id. at 258. The Court also based
its interpretation on the regulation at 29 C.F.R. 790.8, see 350 U.S. at
255 n.9, which provides, in part, that changing clothes on the employer's
premises is compensable where it is required by the employer, the law, or the
nature of the work. See 29 C.F.R. 790.8(c) n.65.
Donning and doffing [6]
clean room clothing is integral and indispensable to clean room employees'
principal production activities. See Ballaris, 370 F.3d at
910-11; Brock v. Mercy Hosp. & Med. Ctr., No. 84-1309, 1986 WL 12877, at
*6 (S.D. Cal. May 6, 1986) (donning and doffing hospital uniforms integral and
indispensable to employees' principal activities). As discussed in Section A,
supra, these activities are required by HTI and performed primarily, if
not exclusively, for HTI's benefit. In addition, Plaintiffs' donning and
doffing is necessary because, pursuant to HTI's policies, employees cannot
perform their production work in the clean room unless they are wearing their
required clean room clothing. See, e.g., Ex. 1, at 3 to Hoffman Aff.
("Proper Gowning procedures are to be followed in all production areas."). Even
if, as HTI contends, see Def.'s Mem. at 28, some employees arrived early
without specifically being instructed to, the time they spend donning clean room
gear is integral and indispensable. See Kosakow v. New Rochelle
Radiology Assocs., P.C., 274 F.3d 706, 718 (2d Cir. 2001) ("If the proper
performance of [the employees'] job required the preparatory work to be
completed when the first walk-in patient could potentially arrive, this time
should have been counted, regardless of whether anybody specifically instructed
them to arrive early.").
Because donning and doffing clean room clothing is integral and indispensable
to Plaintiffs' principal work activities, Plaintiffs must be paid for all time,
including any walking and waiting time (but excluding bona fide meal periods),
between their first donning activity and their last doffing activity.
Alvarez, 546 U.S. at 37. Currently, HTI only pays its employees based on
their shift times, not their actual donning and doffing times. This practice
violates the FLSA.
HTI relies primarily on the Second Circuit's recent decision in Gorman v.
Consolidated Edison Corp., 488 F.3d 586, 594-95 (2007) (petition for reh'g
filed July 20, 2007), to support its argument that donning and doffing clean
room clothing is not "integral" to Plaintiffs' principal activities.[7]
See Def.'s Mem. at 31-36. Gorman held that nuclear power plant
employees donning and doffing of "generic" protective gear, including a helmet,
safety glasses, and steel-toed boots, is not integral to the employees'
principal activities. 488 F.3d at 594-95. The court stated that such donning
and doffing is "not different in kind from 'changing clothes and showering under
normal conditions,' which, under Steiner, are not covered by the FLSA."
Id. at 594. The Gorman decision, however, does not provide
persuasive authority for HTI's argument.
Back to Top
The Second Circuit relied on a DOL regulation, 29 C.F.R. 790.7(g), which
states that clothes changing, "when performed under the conditions normally
present, would be considered 'preliminary' or 'postliminary' activities."
Gorman, 488 F.3d at 594. However, the court inexplicably ignored a footnote
appended to that regulation, which states, "Washing up after work, like the
changing of clothes, may in certain situations be so directly related to the
specific work the employee is employed to perform that it would be regarded as
an integral part of the employee's 'principal activity.'" 29 C.F.R. 790.7(g)
n.49. This footnote is consistent with another DOL regulation (relied on by
Steiner) explaining that clothes changing is compensable if an employee
"cannot perform his principal activities without putting on certain clothes," 29
C.F.R. 790.8(c), and stating that "[s]uch a situation may exist where the
changing of clothes on the employer's premises is required by law, by rules of
the employer, or by the nature of the work." 29 C.F.R. 790.8(c) n.65. This
regulation was ratified by Congress in 1949 when former Section 16(c) of the
FLSA was enacted, see Steiner, 350 U.S. at 254-55 & n.8
(quoting Section 16(c) to the effect that existing Wage-Hour regulations and
interpretations were to remain in effect unless inconsistent with the
amendments, 63 Stat. 920 (1949), 29 U.S.C. 208 (note)), and is entitled to
deference. See Barnhart v. Walton, 535 U.S. 212, 221-22 (2002)
(deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 843-44 (1984) appropriate absent notice-and-comment rulemaking in
light of "the interstitial nature of the legal question, the related expertise
of the Agency, the importance of the question to administration of the statute,
the complexity of that administration, and the careful consideration the Agency
has given the question over a long period of time"); cf. Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944) (Administrator's FLSA interpretations
"constitute a body of experience and informed judgment to which courts and
litigants may properly resort for guidance.").
The Second Circuit ignored this longstanding regulation and determined that
"[t]he donning and doffing of generic protective gear is not rendered integral
by being required by the employer or by government regulation." Gorman,
488 F.3d at 594. This conclusion is flatly contradicted by the authority the
court cites in support of it. See Reich v. IBP, 38 F.3d
at 1125 ("[T]he same reasons supporting the finding of indispensability and
integrality for the unique equipment (i.e., company, OSHA, and Department of
Agriculture regulations requiring such items and the health, safety, and
cost benefits to the company of the employees wearing the items) apply with
equal force to the 'standard' equipment.") (emphasis added). This holding is
also inconsistent with Alvarez, 546 U.S. at 41 n.8 (noting that the
Court's analysis of pre‑donning waiting time would be different if the employer
"required" employees to arrive at a certain time to begin waiting).
The Second Circuit also relied, in part, on its determination that the
donning and doffing of "generic" protective gear was "relatively effortless."
Gorman, 488 F.3d at 594. The court's emphasis on the "generic" nature of
the protective gear is squarely at odds with the Supreme Court's decisions in
Alvarez and Steiner. In Alvarez, the Supreme Court referred
approvingly to the Ninth Circuit's view that whether gear is "unique" or
"non-unique" is irrelevant in determining whether donning and doffing the gear
qualifies as a principal activity. See Alvarez, 546 U.S. at 30,
32; see also Wage and Hour Advisory Mem. No. 2006-2, at 3. This position
is consistent with Steiner's holding that donning and doffing old, clean
work clothes, which would qualify as "non-unique" gear, was integral and
indispensable to the employees' principal activities. 350 U.S. at 256.
Likewise, and contrary to Gorman's holding, 488 F.3d at 594, the amount
of effort involved in donning and doffing clean room clothing is not relevant in
determining whether this activity is integral and indispensable to Plaintiffs'
principal activities. See Alvarez, 339 F.3d at 903 ("[E]ase of
donning and ubiquity of use do not make the donning of such equipment any less
'integral and indispensable' as that term is defined in Steiner.").
Back to Top
C. HTI Cannot Rely on a "De Minimis" Defense to Avoid
Paying its Employees for Time Regularly Spent Donning and Doffing
The Supreme Court in Mt. Clemens recognized that employers do not need
to pay employees for otherwise compensable time if that time is "de minimis."
328 U.S. at 692 ("When the matter in issue concerns only a few seconds or
minutes of work beyond the scheduled working hours, such trifles may be
disregarded."). Pursuant to DOL's implementing regulation, the narrow "de
minimis" exception "applies only where there are uncertain and indefinite
periods of time involved of a few seconds or minutes duration, and where the
failure to count such time is due to considerations justified by industrial
realities." 29 C.F.R. 785.47 (emphasis added).[8]
The Department's longstanding regulation is entitled to controlling deference.
See Barnhart, 535 U.S. at 221-22.[9]
The Department's regulation makes clear that if it is feasible for the
employer to record the time, then the employer cannot escape liability for
paying its employees for this time by relying on the de minimis rule. See
29 C.F.R. 785.47 ("An employer may not arbitrarily fail to count as hours worked
any part, however small, of the employee's fixed or regular working time or
practically ascertainable period of time he is regularly required to spend on
duties assigned to him."); see also Wage and Hour Opinion Letter, 1993 WL
901156 (Mar. 19, 1993) ("Even if the time so spent is not great, but can be
ascertained, it must be considered hours worked for purposes of the FLSA.");
Lindow v. United States, 738 F.2d 1057, 1062-63 (9th Cir. 1984) ("Employers
. . . must compensate employees for even small amounts of daily time unless that
time is so miniscule [sic] that it cannot, as an administrative matter, be
recorded for payroll purposes.") (relying on 29 C.F.R. 785.47). Thus, the de
minimis defense only applies where activity involves "uncertain and indefinite
periods of time." 29 C.F.R. 785.47.
The Department's de minimis regulation is designed to prohibit an employer
from relying on the de minimis defense where it has intentionally decided not to
pay its employees for, as an example, five minutes of regularly scheduled work
every day. Such a situation is no different from an employer not paying
employees when they regularly don and doff required equipment each working day.
Thus, the Department has consistently stated in opinion letters that an employer
cannot rely on a de minimis defense if an activity is "performed pursuant to the
work rules of the employer, is done during practically ascertainable periods of
time, and constitutes a duty which the employee is regularly required to
perform." See, e.g., Wage and Hour Opinion Letter dated June 21, 1993,
Ex. M to Aff. of Troy A. Poetz in Support of Pls.' Mot. for Partial Summ. J.
("Poetz Aff.") (Doc. No. 139) (time spent changing shoes not de minimis); Wage
and Hour Opinion Letter dated July 12, 1973, Ex. L to Poetz Aff. (daily clothes
changing not de minimis). The Department's interpretation of its own
regulation, as expressed in opinion letters and in this amicus brief, is
entitled to controlling deference. See Long Island Care at Home, Ltd.
v. Coke, 127 S. Ct. 2339, 2349 (2007).
Back to Top
HTI challenges the validity of the Department's regulation, arguing that its
consideration of factors other than insubstantiality of time is inconsistent
with Mt. Clemens and subsequent court decisions. See Def.'s Mem.
at 22-26.[10]
HTI's argument is without basis. Mt. Clemens itself acknowledges that
the "the realities of the industrial world" affect the computation of time under
the FLSA. See 328 U.S. at 692. Consistent with this precedent, and with
the Department's regulation, courts generally consider three factors to
determine whether uncompensated time is de minimis: "1) the practical
administrative difficulty of recording the additional time; 2) the size of the
claim in the aggregate; and 3) whether 'the claimants performed the work on a
regular basis.'" Brock v. City of Cincinnati, 236 F.3d 793, 804 (6th
Cir. 2001) (quoting Lindow, 738 F.2d at 1062-63).
In this case, it is undisputed that HTI has technology, in the form of
electronic card readers, that it could use to record the time HTI employees
begin donning and finish doffing each day. See Pls.' Mem. at 23; Def.'s
Mem. at 28. That these card readers are not currently in the gowning areas,
see Def.'s Mem. at 28, does not establish that it would be administratively
difficult for HTI to record the time employees begin donning and the time they
finish doffing. For example, HTI could capture this time by simply eliminating
its current policy prohibiting employees from recording the time they spend
gowning. See Dole v. Enduro Plumbing, Inc., No. 88-7041, 1990 WL
252270, at *6 (C.D. Cal. Oct. 16, 1990) ("Since in this case the construction
workers do in fact check in in the morning upon arrival at the shop and do in
fact check out upon leaving the shop in the afternoon, it is not
administratively impossible to keep track of the unpaid time occur[r]ing each
morning and each afternoon for each construction worker."). There is no
evidence that such a policy change would be administratively difficult, given
HTI's already "relaxed" system of timekeeping. Thus, HTI cannot rely on a de
minimis defense because "even if the amount of time is small, it could easily be
measured." Fast v. Applebee's Int'l Inc., No. 06-4146, 2007 WL 1309680,
at * 9 (W.D. Mo. May 3, 2007).[11]
HTI also argues that it is administratively difficult to record the time
employees spend donning and doffing because "[s]ome employees change clothes
several minutes before their shift starts, apparently because it is convenient
for them to do so and they want to proceed at a more leisurely pace." Def.'s
Mem. at 28. However, this is not sufficient to establish that, "in this day of
modern technology, [the employer] cannot record the compensable work performed
by its employees." Reich v. IBP, Inc., No. 88-2171, 1996 WL 137817, at
*7 (D. Kan. Mar. 21, 1996) (citing Saunders v. John Morrell & Co., No.
C88-4143, 1992 WL 531674 (N.D. Iowa Oct. 14, 1992)). Indeed, HTI's argument
that some employees may socialize or dawdle while performing these activities,
see Def.'s Mem. at 28-29, does not excuse it for failing to record or pay
for working time. As an employer, HTI has a responsibility to control when work
is performed. See Reich v. Dep't of Conservation & Natural Res.,
28 F.3d 1076, 1081-82 (11th Cir. 1994) (an employer who does not want work to be
performed has an obligation to exercise its control over the workforce to
prevent the work from occurring); United States Dep't of Labor v. Cole
Enters., Inc., 62 F.3d 775, 779-80 (6th Cir. 1995) ("[I]t is the
responsibility of management to see that work is not performed if it does not
want it to be performed. The management 'cannot sit back and accept the benefits
without compensating for them.'") (quoting 29 C.F.R. 785.13). Because HTI knows
its employees are gowning and ungowning outside their scheduled shift, HTI must
pay them for this time. See Fast, 2007 WL 1309680, at *7 ("An
employer is obligated to compensate employees for work it knows the employees
are performing.") (citing 29 C.F.R. 785.11).
As Lindow's second factor regarding the size of the aggregate claim
makes clear, the de minimis rule does not apply separately to each particular
activity viewed in isolation. 738 F.2d at 1063; see also De Asencio,
2007 WL 2505583 at *11 (court must consider time spent donning, doffing, and
walking in the aggregate); Wage and Hour Advisory Mem. No. 2006-2, at 3. This
is because "independent de minimis determinations of each task would rarely
result in findings of compensable time – work can always be subdivided into
small enough tasks to be considered de minimis." Reich v. IBP, 1996 WL
137817, at *6. Thus, HTI's argument that "donning the required clothing takes
about one minute and removing it takes somewhat less," Def.'s Mem. at 19, is
irrelevant. What matters is the size of the claim in the aggregate.[12]
Here, Plaintiffs allege that HTI failed to pay for not just donning and doffing
their clean room gear, but also for associated walking and waiting time. See
Pls.' Mem. at 15. Because any post-donning and pre-doffing walking and waiting
are compensable under the FLSA, see Alvarez, 546 U.S. at 37, 40,
Plaintiffs' claim involves more than the isolated donning and doffing events HTI
cites, and amounts to a sizable aggregate claim.
Back to Top
CONCLUSION
For the foregoing reasons, this Court should grant the Plaintiffs' Motion for
Partial Summary Judgment.
Respectfully submitted,
JONATHAN L. SNARE
Acting Solicitor of Labor
STEVEN J. MANDEL
Associate Solicitor
JONATHAN M. KRONHEIM
Counsel for Trial Litigation
s/Joanna Hull
JOANNA HULL - CA Bar #227153
Attorney for Amicus Curiae Sec'y of Labor
U.S. Department of Labor
Office of the Solicitor
200 Constitution Ave., N.W.
Suite N-27
Washington, D.C. 20210
Telephone: (202) 693-5555
Fax: (202) 693-5689
Back to Top
CERTIFICATE OF COMPLIANCE
IN
THE UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF MINNESOTA
______________________________________ |
|
|
|
) |
|
THOMAS DEGE, LOREN SCHMELING, |
) |
|
JAFAR BIHI, FARHIA HASSAN, AHMED |
) |
|
AHMED, ABDI GAARI, AND |
) |
|
BRUCE FLINT, |
) |
|
|
) |
No.
06-3754 (DWF/RLE) |
Plaintiffs, |
) |
|
|
) |
|
v. |
) |
L.R. 7.1 Word Count |
|
) |
COMPLIANCE CERTIFICATE |
HUTCHINSON TECHNOLOGY, INC., |
) |
|
|
) |
|
Defendant. |
) |
|
______________________________________ |
) |
|
I, Joanna Hull, hereby certify
that the Secretary of Labor's Brief As Amicus Curiae In Support
of Plaintiffs' Motion For Partial Summary Judgment
complies with the word count limitation specified in this Court's August 15,
2007 Order, ¶ 2 (Doc. No. 174) and the type size limitation in Local Rule
7.1(e).
I further certify that, in
preparation of this memorandum, I used Microsoft Office Word 2003, and that this
word processing program has been applied specifically to include all text,
including headings, footnotes, and quotations in the following word count.
I further certify that the
above-referenced memorandum contains 5,989 words.
s/Joanna Hull
JOANNA HULL - CA Bar #227153
Attorney for Amicus Curiae Sec'y of Labor
U.S. Department of Labor
Office of the Solicitor
200 Constitution Ave., N.W.
Suite N-2716
Washington, D.C. 2021
Telephone: (202) 693-5555
Fax: (202) 693-5689
Dated: September 12, 2007
Back to Top
CERTIFICATE OF SERVICE
IN
THE UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF MINNESOTA
______________________________________ |
|
|
|
) |
|
THOMAS DEGE, LOREN SCHMELING, |
) |
|
JAFAR BIHI, FARHIA HASSAN, AHMED |
) |
|
AHMED, ABDI GAARI, AND |
) |
|
BRUCE FLINT, |
) |
|
|
) |
No.
06-3754 (DWF/RLE) |
Plaintiffs, |
) |
|
|
) |
|
v. |
) |
CERTIFICATE OF SERVICE |
|
) |
|
HUTCHINSON TECHNOLOGY, INC., |
) |
|
|
) |
|
Defendant. |
) |
|
______________________________________ |
) |
|
I hereby certify that on
September 12, 2007, I caused the following documents:
Secretary of
Labor's Brief As Amicus Curiae In Support of Plaintiffs' Motion For Partial Summary
Judgment
L.R. 7.1 Word Count Compliance Certificate
to be filed electronically with the Clerk of Court through ECF, and that ECF
will send an e-notice of electronic filing to the following:
Steven R. Anderson
Faegre & Benson LLP
sanderson@faegre.com
David J. Goldstein
Faegre & Benson LLP
dgoldstein@faegre.com
Daniel N. Lovejoy
Faegre & Benson LLP
dlovejoy@faegre.com
Joel P. Schroeder
Faegre & Benson LLP
jschroeder@faegre.com
Gordon H. Hansmeier
Rajkowski Hansmeier Ltd.
ghansmeier@rajhan.com
Gregory J. Haupert
Rajkowski Hansmeier Ltd.
ghaupert@rajhan.com
Troy A. Poetz
Rajkowski Hansmeier Ltd.
tpoetz@rajhan.com
Willliam L. Moran
Murnane Brandt, PA
wmoran@murnane.com
s/Joanna Hull
JOANNA HULL - CA Bar #227153
Attorney for Amicus Curiae Sec'y of Labor
U.S. Department of Labor
Office of the Solicitor
200 Constitution Ave., N.W.
Suite N-2716
Washington, D.C. 20210
Telephone: (202) 693-5555
Fax: (202) 693-5689
Dated: September 12, 2007
Back to Top
________________________________
Footnotes:
[1] This brief does not address the procedural and timeliness arguments
raised by Defendant in its Memorandum in Opposition to Plaintiffs' Motion for
Partial Summary Judgment ("Def.'s Mem.") (Doc. No. 151). See id.
at 1-2, 14-15.
[2] Consistent with the principle that when considering motions for summary
judgment, "[t]he evidence and all fair inferences from it must be viewed in the
light most favorable to the non moving party," Johnson v. Blaukat, 453
F.3d 1108, 1112 (8th Cir. 2006), the Secretary relies on the facts as presented
by HTI and Plaintiffs' facts that HTI has not disputed.
[3] The most relevant definition, in section 3(g) of the Act, provides that
"'[e]mploy' includes to suffer or permit to work." 29 U.S.C. 203(g).
[4] Both Plaintiffs and HTI incorrectly quote this statutory language in
their Memoranda by including the phrase, "which 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," as part of paragraph 2 of Section 4(a). See Pls.' Mem. at
12; Def.'s Mem. at 31. As shown in the above-quoted passage, that phrase, which
describes the "continuous workday" concept, see Alvarez, 546 U.S.
at 28-29, is part of subsection (a) of Section 4, and therefore applies equally
to both paragraphs (1) and (2) of Section 4(a) of the Portal Act.
[5] Any "principal activity" can begin and end the workday, regardless of
how long that activity takes to perform. 29 U.S.C. 254(a); see
93 Cong. Rec. at 2298 (statement of Sen. Cooper that an employee's pre-shift
activity of handing out clothes in the morning would be a "principal activity"
whether it took "15 or 10 minutes or five minutes or any other number of
minutes."); 29 C.F.R. 790.8(b) n.63 (construing legislative history to indicate
that "any amount of time" will suffice).
[6] This Court recently observed, in a decision by Judge Kyle, that
"'Donning' an item of clothing means to obtain it and put it on, while 'doffing'
means taking the item off and storing it." Dominquez v. Minnesota Beef
Indus., Inc., No. 06-1002, slip op. at 1 n.1 (Aug. 21, 2007) (citing Tum
v. Barber Foods, Inc., 360 F.3d 274, 283 (1st Cir. 2004), aff'd in part,
rev'd in part and remanded, 546 U.S. 21 (2005)). This is consistent with
the Department of Labor's ("DOL" or "Department") position. See Wage and
Hour Advisory Mem. No. 2006-2, at 1 n.1 (May 31, 2006), available at
http://www.dol.gov/esa/whd/FieldBulletins/AdvisoryMemo2006_2.pdf.
[7] HTI finds significance in the Second Circuit's parsing of the terms
"integral" and "indispensable." See Def.'s Mem. at 32, 34-35 & n.12.
However, the Second Circuit, in distinguishing these terms and relying on
dictionary definitions, ignored Dunlop's widely accepted test for
determining whether an activity is integral and indispensable, and DOL's
regulation addressing required clothes changing, 29 C.F.R. 790.8(c). See
supra.
[8] DOL promulgated this regulation in 1955. See 20 Fed. Reg. 9963,
9967 (Dec. 24, 1955) (29 C.F.R. 785.4(b)). DOL revised the regulation in 1961,
renumbering it and adding citations to some court decisions. See 26 Fed.
Reg. 190, 195 (Jan. 11, 1961).
[9] If this Court determines that the regulation is not entitled to
controlling Chevron deference, it is entitled, at a minimum, to
substantial deference under Skidmore, 323 U.S. at 140.
[10] HTI argues that the caselaw establishes that anything less than 10
minutes is de minimis. See Def.'s Mem. at 24-25. However, as the Ninth
Circuit stated in the often-cited case, Lindow, "[t]here is no precise
amount of time that may be denied compensation as de minimis." 738 F.2d at
1062. HTI's reliance on Riggs v. United States, 21 Cl. Ct. 664 (Cl. Ct.
1990), is similarly misplaced. See Def.'s Mem. at 26 & n.9. That case
addressed an Office of Personnel Management regulation that applies only to
federal government employees. See 5 C.F.R. 551.412(a)(1). That
regulation does not discuss the de minimis doctrine, and does not apply to the
employees in this case, who worked for a private company, not the federal
government.
[11] HTI has a duty to accurately record the hours its employees work each
day. See 29 U.S.C. 211(c); 29 C.F.R. 516.2(a)(7) (employers must keep
records of hours worked each workday); 29 C.F.R. 516.6(a)(1) (employers must
maintain time cards or sheets showing daily starting and stopping time of
individual employees).
[12] Lindow did not state definitively what it meant by aggregating
time. It did state that "[a]n important factor in determining whether a claim
is de minimis is the amount of daily time spent on the additional
work," though it also noted that no amount of time is dispositive. 738 F.2d at
1062. The Ninth Circuit also cited to other cases where time has been
aggregated beyond a daily basis (ranging up to three years), id. at 1063,
and pointed to cases where time was aggregated "in relation to the total sum or
claim involved in the litigation." Id.; see also
Reich v. Monfort, Inc., 144 F.3d 1329, 1334 (10th Cir. 1998) (post-Lindow
case where court stated that "[i]t is also appropriate to consider an aggregate
based on the total number of workers").
| |
|