In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2115
ROCHELL MITCHELL, et al., individually and on behalf of
all others similarly situated,
Plaintiffs‐Appellants,
v.
JCG INDUSTRIES, INC., and KOCH FOODS, INC.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 C 6847 — Robert M. Dow, Jr., Judge.
____________________
ARGUED JANUARY 7, 2014 — DECIDED MARCH 18, 2014
____________________
Before WOOD, Chief Judge, and POSNER and KANNE, Cir‐
cuit Judges.
POSNER, Circuit Judge. The plaintiffs are employed in a
poultry processing plant in Chicago owned by the defend‐
ants, affiliated corporations that we’ll call “the employer.”
The plaintiffs advance two claims: a claim by the two plain‐
tiffs, suing jointly, that the employer has violated an over‐
time provision of the Fair Labor Standards Act, 29 U.S.C.
2 No. 13‐2115
§§ 201 et seq.; and a class action claim (supplemental to the
federal claim, see 28 U.S.C. § 1367(a)), made by the plaintiffs
as the representatives of the class, that the employer’s con‐
duct violates an overtime provision of the Illinois Minimum
Wage Law, 820 ILCS 105/1 et seq. The federal law does not
preempt the state law if the latter is more generous to em‐
ployees, see 29 U.S.C. § 218(a); Spoerle v. Kraft Foods Global,
Inc., 614 F.3d 427, 428–30 (7th Cir. 2010), so even if we decide
that the employer has not violated the federal law, we can
find that it has violated the state law. The district judge
granted summary judgment in favor of the employer on
both claims, and having done so dismissed the plaintiffs’
motion to certify a class with respect to the state‐law claim.
One might have expected the employer to press for certifica‐
tion, in order to preclude a further identical suit by others of
its employees, see Randall v. Rolls‐Royce Corp., 637 F.3d 818,
820–21 (7th Cir. 2011); but it did not.
The employees in question are line workers represented
by a union—Chicago Joint Board, RWDSU (Retail, Whole‐
sale and Department Store Union), http://rwdsu.
info/about.htm (visited March 13, 2014, as were the other
websites cited in this opinion)—that has a collective bargain‐
ing agreement with the employer. The line workers stand
next to a conveyor belt and each worker performs various
operations on chicken carcasses, such as deboning and evis‐
ceration, as each carcass, carried on the moving belt, arrives
in front of him or her. For a comprehensive description of
the process, see Tony Ashdown, “Poultry Processing,”
www.ilo.org/safework_bookshelf/english?content&nd=8571
70833; see also Kimberly Kindy, “Fight Picks Up Over Pro‐
posal to Speed Poultry‐Processing Lines,” Wash. Post, Feb.
28, 2014, p. A3.
No. 13‐2115 3
For obvious reasons, “rigid sanitation requirements must
be met.” Ashdown, supra. So before beginning work in the
morning the line workers are required to put on a sterilized
jacket, plastic apron, cut‐resistant gloves, plastic sleeves,
earplugs, and a hairnet. They are required to remove this
sanitary gear at the start of their half‐hour lunch break and
put it back on before returning to work. They are also told to
wash their hands before eating, but given the nature of poul‐
try processing would doubtless do it without being told to.
The principal issue in the case, and the only one presented
by the federal claim, is whether the time spent in changing
during the lunch break is worktime that must be compen‐
sated. It’s called “changing,” so we’ll call it that too, but the
term is imprecise. The workers do not change out of their
clothes; they place the sanitary gear on top of their street
clothes, and remove it.
The time the workers spend changing before and after
eating lunch is time taken out of their lunch break rather
than out of the four‐hour shifts that precede and follow it. It
thus leaves them with less time for actually eating. But com‐
pression of their eating time is not a concern that motivates
the workers’ suit; that it is not implies of course that the
amount of time consumed in changing is indeed slight, as is
further implied by the fact that the plaintiffs don’t argue that
the meal break is not a bona fide meal break. Were it not bo‐
na fide, they would be entitled to be paid for all thirty
minutes. Since it’s conceded to be bona fide, it is not work‐
time, 29 C.F.R. § 785.19(a) (“bona fide meal periods are not
worktime”)—that is, time that the employer is required to
compensate employees for even if (as in this case) there is a
collective bargaining agreement between the employer and
the employees’ union and the agreement does not require
4 No. 13‐2115
such compensation. 29 C.F.R. § 778.223. The plaintiffs argue
nevertheless that federal and state law requires that this
changing time be compensated—and at 1.5 times the em‐
ployees’ regular wage because it is on top of their 40‐hour
weekly worktime and thus is overtime—even though the
collective bargaining agreement makes the entire meal peri‐
od noncompensable and the Fair Labor Standards Act does
not require that meal periods be compensated.
The Act further excludes from the time during which an
employee is entitled to be compensated at the minimum
hourly wage (or, if it is overtime work, at 150 percent of the
employee’s regular hourly wage) “any time spent in chang‐
ing clothes at the beginning or end of each workday which was
excluded from measured working time … by the express
terms of or by custom or practice under a bona fide collec‐
tive‐bargaining agreement applicable to the particular em‐
ployee.” 29 U.S.C. § 203(o). The phrase we’ve italicized is the
bone of contention over the applicability of section 203(o) to
this case. The lunch break does not take place at the begin‐
ning or end of the period in which the employees are at the
plant, and the plaintiffs contend that only that period is the
“workday.”
An initial doubt is whether that interpretation can possi‐
bly be correct given that many workers work (whether
sometimes or only) at night. Nightworkers are called “shift
workers” and are estimated to comprise 20 percent of the
American workforce. See Sloan Work and Family Research
Network, “Questions and Answers About Shift Work,”
http://workfamily.sas.upenn.edu/sites/workfamily.sas.
upenn.edu/files/imported/pdfs/shiftwork.pdf. A busy facto‐
ry might have three eight‐hour shifts, such as 8 a.m. to 4
No. 13‐2115 5
p.m., 4 p.m. to midnight, and midnight to 8 a.m. These
workers have a “workday,” but it begins or ends at night
(sometimes both). It would be called their “worknight” were
there such a word, but because there isn’t, “workday” has
acquired two meanings: a day on which work is performed,
and “the period of time in a day during which work is per‐
formed.” “Workday,” Merriam‐Webster, www.merriam‐
webster.com/dictionary/workday. Workers given a half‐hour
lunch or other meal break from work are in effect working
two four‐hour workdays in an eight‐and‐a‐half‐hour period.
It would make no practical sense to draw the distinction
urged by the plaintiffs. An eight‐hour workday is standard.
If the job requires changing at the beginning and end of the
workday, and the time spent changing has to be compen‐
sated, the eight‐hour workday becomes an eight‐hour +
some‐minutes workday and so the employer has to pay
overtime. Since changing time isn’t working time, a union
may decide not to press the employer to pay the workers for
that time. That forbearance is likely to be mutually attractive
because it avoids the bother of having to keep track of how
long the changing takes (and it will differ for each worker) in
order to determine what each worker is owed for that time.
Hence the optional exemption in section 203(o).
If as we believe “workday” includes “worknight,” it may
also include four‐hour shifts separated by meal breaks. It is
true that a regulation defines “workday” to mean, “in gen‐
eral, 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). But the qualifying phrase “in
general” (paraphrased as “generally” in IBP, Inc. v. Alvarez,
546 U.S. 21, 29 (2005)) allows room for an exception; and
6 No. 13‐2115
there is compelling reason to recognize an exception in this
case. (It is noteworthy that section 203(o) does not mention
meal breaks, hence does not consider the effect they may
have on a practical definition of “workday.”) The identical
considerations attend payment for time changing at the be‐
ginning and end of a meal break as at the beginning and end
of either a conventional “workday” or the lexicographically
challenged “worknight.”
Still another reason to interpret “workday” in this man‐
ner is that the Fair Labor Standards Act does not require
employers to provide meal breaks at all. Whether to provide
them is left up to collective bargaining if as in this case the
workplace is unionized. And if they are provided, then as
long as they’re “bona fide,” the time they take doesn’t have
to be compensated. 29 C.F.R. § 785.19. The regulation gives,
as an example of a meal break that is not bona fide, when “a
factory worker who is required to be at his machine is work‐
ing while eating.” The plaintiffs in this case do not argue
that their lunch break is not bona fide.
As the Supreme Court pointed out recently in a related
context, “simply put, [section 203(o)] provides that the com‐
pensability of time spent changing clothes or washing is a
subject appropriately committed to collective bargaining.”
Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 876 (2014). To inter‐
pret section 203(o) narrowly disserves the interest of workers
by narrowing the scope of collective bargaining and, as in
this case, setting a group of workers against their union.
There are good practical reasons why the union in this case
did not negotiate for making the time compensable. To de‐
termine how much overtime pay was owed for changing
during the lunch break, the employer would have to keep
No. 13‐2115 7
tabs on how long it takes each employee to change. Unless
the employer both fixed a rigid outer limit for time spent
changing and monitored compliance with that limit, em‐
ployees would have an incentive to dawdle at changing in
order to increase their wage—which remember is an over‐
time wage.
These complications would be avoided if time spent dur‐
ing the meal break in actually eating also had to be compen‐
sated. For then the employer would know he had to pay
every employee one‐half hour of overtime wage in addition
to eight hours of the employee’s regular wage. But we know
that meal time does not have to be compensated. On the ba‐
sis of the regulation cited earlier that excludes bona fide
meal periods from worktime for which workers are required
to be paid, the Fourth Circuit has held in a case indistin‐
guishable from this one that “the time [employees] spend
during their lunch breaks donning and doffing a few items
[i.e., changing clothes], washing, and walking to and from
the cafeteria … is non‐compensable … because it is part of a
bona fide meal period, see 29 C.F.R. § 785.19 …, and, in the
alternative, de minimis.” Sepulveda v. Allen Family Foods, Inc.,
591 F.3d 209, 216 n. 4 (4th Cir. 2009).
Sepulveda actually offers two grounds alternative to our
interpretation of “workday” for excluding the donning and
doffing time in this case from the overtime provision of the
Fair Labor Standards Act. We have been assuming thus far
that that time is expended at the beginning and end of the
(four‐hour) workday. But in an equally valid sense it is ex‐
pended during the lunch break itself. For the exclusion of
mealtime from worktime is not exclusion of just the time
spent eating—it is the entire “meal period,” which we know
8 No. 13‐2115
is 30 minutes. It is excluded as long as it is bona fide, and, as
we said, the plaintiffs don’t deny that the lunch break at is‐
sue in this case is bona fide. If so, all 30 minutes, including
changing time, are excluded from worktime and therefore
need not be compensated.
The Sepulveda opinion’s other alternative ground for af‐
firmance is unrelated to the meaning of “workday” or even
of “meal periods.” This is the familiar legal doctrine de mini‐
mis non curat lex—the law doesn’t care about trifles (the
punchier version is aquila non capit muscas—an eagle doesn’t
catch flies). The doctrine figured in our opinion in Sandifer v.
U.S. Steel Corp., 678 F.3d 590, 593 (7th Cir. 2012), affirmed,
134 S. Ct. 870 (2014). The issue was whether the exemption
permitted by section 203(o) if agreed to by the parties to a
collective bargaining agreement was vitiated by the fact that,
in addition to putting on and taking off clothes, the workers
had to put on and take off protective equipment, which is
not clothing and so is not within the scope of the exemption.
Quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,
692 (1946), we said that “split‐second absurdities are not jus‐
tified by the actualities of working conditions or by the poli‐
cy of the Fair Labor Standards Act. It is only when an em‐
ployee is required to give up a substantial measure of his
time and effort that compensable working time is involved.”
678 F.3d at 593.
That remark was consistent with the suggestion in Hessel
v. O’Hearn, 977 F.2d 299, 304 (7th Cir. 1992), that “the maxim
de minimis non curat lex is often, perhaps typically, used … to
denote types of harm, often but not always trivial, for which
the courts do not think a legal remedy should be provided.”
One reason to withhold a remedy is that the harm is small
No. 13‐2115 9
but measuring it for purposes of calculating a remedy would
be difficult, time‐consuming, and uncertain, hence not
worthwhile given that smallness. It is inconceivable that “a
substantial measure” of the poultry workers’ “time and ef‐
fort” is consumed in changing during the lunch break. The
plaintiffs say it takes 10–15 minutes during the lunch break
for them to change out of and then into the protective cloth‐
ing; the company says 2–3 minutes. These time estimates do
not include time spent walking to and from the lunch room;
the plaintiffs’ statement of facts limits the 10–15 minute es‐
timate to the two clothing changes required during the lunch
break.
The district judge did not opine on how long the donning
and doffing take, a question difficult to answer in the usual
way of judicial fact determination. The plaintiffs would testi‐
fy that it takes 10 to 15 minutes, the employer that it takes
only 2 to 3 minutes, and how would a judge or jury know
who was telling the truth? The plaintiffs could be filmed
changing, but their incentive would be to dawdle; the com‐
pany could doubtless find a few speed demons among the
workers. The limitations of the trial process as a method of
finding certain types of fact must be recognized.
One of us decided to experiment with a novel approach.
It involved first identifying the clothing/equipment that the
defendant’s plants use and buying it (it is inexpensive) from
the supplier. Upon arrival of the clothing/equipment three
members of the court’s staff donned/doffed it as they would
do if they were workers at the plant. Their endeavors were
videotaped. The videotape automatically recorded the time
consumed in donning and doffing and also enabled verifica‐
tion that the “workers” were neither rushing nor dawdling.
10 No. 13‐2115
The videotape reveals that the average time it takes to re‐
move the clothing/equipment is 15 seconds and the average
time to put it on is 95 seconds. The total, 110 seconds, is less
than two minutes, even though the “actors” had never
worked in a poultry processing plant and were therefore in‐
experienced donners/doffers of the items in question.
This was not “evidence”—the intention was to satisfy cu‐
riosity rather than to engage in appellate factfinding—but it
is information that confirms the common sense intuition that
donning and doffing a few simple pieces of clothing and
equipment do not eat up half the lunch break. (If it did, the
lunch break might well not be bona fide; but as we said the
plaintiffs do not argue that it is not bona fide.) The intuition
is compelling; no reasonable jury could find that workers
spend half their lunch break taking off and putting on a lab
coat, an apron, a hairnet, plastic sleeves, earplugs, and
gloves. What a reasonable jury could not find does not create
a triable issue of fact.
Regarding the propriety of visual imagery in a judicial
opinion, we note the Supreme Court’s reference in a footnote
in its Sandifer opinion to a photograph in our opinion. The
Court (which affirmed our decision unanimously) said: “the
opinion of the Court of Appeals provides a photograph of a
male model wearing the jacket, pants, hardhat, snood,
gloves, boots, and glasses. 678 F.3d, at 593.” 134 S. Ct. at 874
n. 2. There is no note of disapproval, even though the photo‐
graph was not in evidence.
Common sense has a place in adjudication. What could
be more absurd than to require as a matter of interpretation
of the Fair Labor Standards Act that donning and doffing
times during lunch breaks be measured daily for each poul‐
No. 13‐2115 11
try worker for purposes of calculating overtime pay (a mod‐
est fraction of an hour’s wage) due each worker twice every
day? For the employer to try to quantify that time, across
numerous employees and numerous days of work, other
than by statistical sampling methods suggested by neither
side in this case, would be an undertaking at once onerous
and futile. Nor is having to change inconsistent with the
plaintiffs’ having been “completely relieved from duty” dur‐
ing their lunch break, 29 C.F.R. § 785.19(a), considering how
remote from this simple changing are the “duties” listed in
the regulation: “an office employee who is required to eat at
his desk or a factory worker who is required to be at his ma‐
chine.”
We are mindful of the Supreme Court’s statement in San‐
difer that “a de minimis doctrine does not fit comfortably
within the statute at issue here, which, it can fairly be said, is
all about trifles—the relatively insignificant periods of time in
which employees wash up and put on various items of cloth‐
ing needed for their jobs. Or to put it in the context of the
present case, there is no more reason to disregard the minute
or so necessary to put on glasses, earplugs, and respirators,
than there is to regard the minute or so necessary to put on a
snood. If the statute in question requires courts to select
among trifles, de minimis non curat lex is not Latin for close
enough for government work.” Sandifer v. U.S. Steel Corp., supra,
134 S. Ct. at 880 (emphases in original). But reading on we
discover that by another route the Court reached either the
same result that we, and likewise the Fourth Circuit in
Sepulveda, had reached, or a result that allows greater latitude
for collective bargaining than the de minimis doctrine. The
Court restated the issue as “whether the period at issue can,
on the whole, be fairly characterized as ‘time spent in chang‐
12 No. 13‐2115
ing clothes or washing.’ If an employee devotes the vast ma‐
jority of the time in question to putting on and off equip‐
ment or other non‐clothes items (perhaps a diver’s suit and
tank) the entire period would not qualify as ‘time spent in
changing clothes’ under § 203(o), even if some clothes items
were donned and doffed as well. But if the vast majority of
the time is spent in donning and doffing ‘clothes’ … the en‐
tire period qualifies, and the time spent putting on and off
other items need not be subtracted.” Id. at 881 (emphasis in
original). The poultry workers in our case do not spend the
“vast majority of the time” during their lunch breaks don‐
ning and doffing.
The Supreme Court said that it “agree[d] with the basic
perception of the Courts of Appeals [which is to say, the
Fourth and Seventh Circuits] that it is most unlikely Con‐
gress meant § 203(o) to convert federal judges into time‐
study professionals. That is especially so since the conse‐
quence of dispensing with the intricate exercise of separating
the minutes spent changing clothes from the minutes devot‐
ed to other activities is not to prevent compensation for the
uncovered segments, but merely to leave the issue of com‐
pensation to the process of collective bargaining. We think it
is possible to give the text of § 203(o) a meaning that avoids
such relatively inconsequential judicial involvement in ‘a
morass of difficult, fact‐specific determinations,’ Sepulveda,
591 F.3d, at 218. … In the present case, the District Court
stated that ‘the time expended by each employee donning
and doffing’ safety glasses and earplugs ‘is minimal,’ … a
conclusion with which the Seventh Circuit agreed.” 134 S.
Ct. at 881. And the Supreme Court affirmed. (Notice the
Court’s favorable citation of Sepulveda, a decision on which
we rely in this case.)
No. 13‐2115 13
The Latin word “minimis” means “minimal things,” but
the usual legal translation of “de minimis non curat lex” is that
the law doesn’t concern itself with “trifles.” The word “min‐
imal” is less dismissive, and notice that the Court in the pas‐
sage we just quoted speaks of avoiding “relatively inconse‐
quential judicial involvement in ‘a morass of difficult, fact‐
specific determinations.’” That is an exact description of a
court’s determining the changing time spent by the different
poultry workers on different days, rather than leaving it to
the union to decide to negotiate in lieu of the monitoring and
incessant disagreement that such a measurement process
would require to implement an alternative form of compen‐
sation. No way the workers would come out ahead by pre‐
vailing in this class action suit.
We turn now to the claim based on Illinois’s minimum
wage statute. That statute fixes a minimum hourly wage and
requires overtime pay for employees who have “a work‐
week of more than 40 hours.” 820 ILCS 105/4(a)(1), 4a(1). The
statute doesn’t say “hour” or “hours” of what, and contains
no counterpart to section 203(o) of the federal law. But it au‐
thorizes the Director of the Illinois Department of Labor to
make administrative regulations “including definitions of
terms, as he deems appropriate to carry out the purposes of”
the minimum wage law. 820 ILCS 105/10(a). Pursuant to this
authorization the Director in 1984 promulgated a regulation
which states that “‘hours worked’ means all the time an em‐
ployee is required to be on duty, or on the employer’s prem‐
ises, or at other prescribed places of work, and any addition‐
al time he or she is required or permitted to work for the
employer.” 56 Ill. Admin. Code § 210.110. That’s broad, and
standing alone would encompass time spent changing dur‐
ing a meal break, because that can be done only on the em‐
14 No. 13‐2115
ployer’s premises. But there is more to the regulation. A 1995
addition states that “an employee’s meal periods … are
compensable hours worked when such time is spent pre‐
dominantly for the benefit of the employer, rather than for
the employee.” The first part of section 210.110 that we quot‐
ed is worded almost identically to the “hours worked” fed‐
eral regulation, 29 C.F.R. § 778.223; the second part parallels
the other federal regulation that we cited, 29 C.F.R.
§ 785.19(a), by taking bona fide meal time out of worktime.
The single Illinois regulation covers the same ground as the
two federal regulations, though with a useful clarification, as
we’re about to see.
The employees in this case can leave the plant during
their lunch break and grab a bite at a nearby restaurant, but
they have to be on the employer’s premises when changing.
It doesn’t follow that the time taken for the meal break is
predominantly for the employer’s benefit rather than the
employee’s. Cf. Barefield v. Village of Winnetka, 81 F.3d 704,
710 (7th Cir. 1996). On the contrary, the employer does not
provide a meal break so that the employees can don and doff
protective clothes and equipment, but so that they don’t
have to work eight hours straight without food. The meal
break is for the employees’ benefit. The clothes changing is
incidental to their eating lunch.
The predominance test is related to the de minimis doc‐
trine, but it is part of the regulation rather than a common
law add‐on (de minimis non curat lex is a common law doc‐
trine, both state and federal). But the common law add‐on is
part of Illinois labor law as well. In Porter v. Kraft Foods Glob‐
al, Inc., 2012 WL 7051311, at *9 (Ill. App. Dec. 10, 2012), the
Illinois Appellate Court, relying on our Sandifer opinion, ap‐
No. 13‐2115 15
plied the de minimis doctrine to the small amounts of time
that workers in Porter took to don and doff protective
equipment at the beginning and end of their workday. There
is no mention in the opinion of a collective bargaining
agreement between the parties. Remember that section
203(o) of the federal Act allows certain on‐premises time to
be exempted from the Act’s minimum wage and overtime
provisions only if a collective bargaining agreement so pro‐
vides—and section 203(o) doesn’t have a counterpart in the
Illinois law. But to dwell on these differences is to miss the
independent force of the de minimis doctrine (or the alternative
preferred by the Supreme Court—“minimal”—not that its
preference would bind the Illinois courts or regulators when
dealing with an Illinois statute or regulation).
It was not argued in Sandifer that the clothes‐changing time
involved in that case was de minimis. The exclusion of that
time from hours worked was based on a provision of the col‐
lective bargaining agreement authorized by section 203(o) of
the Fair Labor Standards Act. The argument, which carried
the day, was that the protective equipment that the workers
had to put on and take off in addition to putting on and tak‐
ing off their work clothes was de minimis. There is similarly
no argument in this case that the meal breaks are de minimis;
under both the state and federal statutes they are not work
time at all, just as the clothes‐changing time in Sandifer was,
by virtue of the collective bargaining agreement and section
203(o), not work time. The question under Illinois law is
whether the time spent during the half‐hour meal break in
changing clothes, corresponding to putting on and taking off
the protective equipment in Sandifer, is de minimis.
16 No. 13‐2115
Remember that what the parties call changing clothes in
this case is not dressing and undressing—that is, changing
from street clothes into work clothes and upon ending work
changing back again—but rather is placing several items of
protective clothing or equipment on top of the employee’s
street clothes (or in or on his person rather than on his street
clothes, in the case of the earplugs and hairnet) and later re‐
moving them. If these actions took a big chunk of time, leav‐
ing inadequate time for eating without getting indigestion,
the meal break would no longer be bona fide. But that is not
argued. For us to rule that a few minutes of changing time
must be compensated would put us in the role that the Su‐
preme Court derided—that of playing at being “time‐study
professionals.” The pertinence of “practical administrative
difficulties” in calculating the duration of an activity “for
payroll purposes” was noted by the Illinois Appellate Court
in Bartoszewski v. Village of Fox Lake, 647 N.E.2d 591, 596 (Ill.
App. 1995), a case that, incidentally, characterized “the Fed‐
eral case law” as “instructive” in interpreting the Illinois
law. Id. at 594.
Never to our knowledge has either the Director’s regula‐
tion been held to require compensation for changing time at
the beginning and end of meal breaks, or the provision in a
collective bargaining agreement excluding meal breaks from
compensable time been challenged. The absence of any en‐
forcement of the interpretation advocated by the plaintiffs in
this case is telling evidence of how the Illinois law is under‐
stood by Illinois judges, lawyers, and labor officials. The Por‐
ter decision signals that the de minimis rule is alive and well
in Illinois’s law of employee compensation, and the rule is
amplified by the predominance test in the regulation. And
there is nothing to suggest that the Illinois Appellate Court
No. 13‐2115 17
in Porter thought it was creating new law. We would expect
that had it thought that, it would have published its opinion.
And we have no reason to think that the state’s highest court
would disagree with Porter—it denied Porter’s petition to
appeal the Illinois Appellate Court’s decision to it. 985
N.E.2d 310 (2013) (per curiam).
There is a benefit, in simplified labor relations, from a
degree of convergence of federal and state law in regard to
the scope of exemptions from mandatory provisions of those
different bodies of law when both are applicable to the same
workforce, as they are in many cases—in this case, for ex‐
ample. As we noted in Driver v. AppleIllinois, LLC, 739 F.3d
1073, 1075 (7th Cir. 2014), Illinois courts frequently say that
they look to the Fair Labor Standards Act for guidance in in‐
terpreting the state’s minimum wage law. Besides the Illinois
cases cited in id., see, e.g., Lewis v. Giordanoʹs Enterprises, Inc.,
921 N.E.2d 740, 745–46 (Ill. App. 2009), and Bernardi v. Village
of North Pekin, 482 N.E.2d 101, 102 (Ill. App. 1985). The Illi‐
nois Department of Labor has said that too. See 56 Ill. Ad‐
min. Code § 210.120. Earlier we noted the similarity of the
federal and state regulations pertinent to this case.
So far in this opinion we have been discussing just chang‐
ing time during meal breaks. That is the primary focus of the
appeal. But the plaintiffs also argue, though only with re‐
spect to their claim under Illinois law, that not only should
that time be compensated but likewise the time the workers
take to don and doff at the beginning of the morning shift
and end of the afternoon shift. But if as we have just ruled
the time spent on the identical activity during meal breaks is
de minimis (or “minimal” in the Supreme Court’s preferred
term), it is even more clearly so when performed at the be‐
18 No. 13‐2115
ginning and end of the workers’ day of work. The amount of
time spent on the activity is the same but obviously is a
much larger fraction of a 30‐minute lunch break than of 8
hours (480 minutes) of work time (16 times larger). If it is de
minimis in the first case, it is de minimis a fortiori in the sec‐
ond.
We end this longish opinion with a reminder that the
cause of amicable labor‐management relations is impaired
by reading broadly statutes and regulations that remove
wage and hour issues from the scope of collective bargain‐
ing. That is what motivated Congress to amend the Fair La‐
bor Standards Act in 1947 to add (among other provisions)
what is now section 203(o), stating in 29 U.S.C. § 251 that
“Congress finds that the Fair Labor Standards Act of 1938 …
has been interpreted judicially in disregard of long‐
established customs, practices, and contracts between em‐
ployers and employees, thereby creating wholly unexpected
liabilities, immense in amount and retroactive in operation,
upon employers.” Employer and union in this case have
agreed not to count the tiny donning/doffing times as com‐
pensated work. Doubtless the union required compensation
for that concession to the employer. The plaintiffs in this case
are trying to upend the deal struck by their own union.
AFFIRMED.
No. 13‐2115 19
WOOD, Chief Judge, dissenting. This case requires us to re‐
turn to the topic of “donning and doffing” clothing and
equipment for purposes of performing a job—and in particu‐
lar, to the question whether the time spent in those quaintly‐
termed activities must be included as work‐time for purpos‐
es of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et
seq. The plaintiffs in our case work at a poultry processing
plant. Before they may begin their work, which involves
evisceration, deboning, and cleaning of the carcasses, plain‐
tiffs must “don” certain outerwear and protective gear. In
the middle of the day, at lunchtime, they remove the sanitary
gear and wash up. At the end of the lunch break, they suit
up again, and at the end of their shift they remove the gear
for good, wash up again, and head home. Plaintiffs argue
that under both the FLSA and the Illinois Minimum Wage
Law, 820 ILCS 105/1 et seq., they are entitled to be compen‐
sated for the time they spend putting on and taking off this
gear, plus the associated washing‐up time.
The majority asserts that cleaning up is not part of the
employee’s “work,” but I see no justification for this holding.
Section 203(o) refers explicitly to washing; and the employer
cannot permit people who work with raw meat to enter the
lunchroom without thoroughly washing up. For example,
Facility Guidelines for Meat Processing Plants issued by the
U.S. Department of Agriculture specifically identify hand‐
wash sinks as “one of the most important steps” for proper
sanitation that must be taken in such a plant. See 62 Fed.
Reg. 45,028, 45,030 (Aug. 25, 1997), available at
www.ncagr.gov/meatpoultry/pdf/Facility%20Guidelines.pdf,
(last visited Mar. 16, 2014). Indeed, the Centers for Disease
Control and Prevention warn people who keep live poultry
in their backyards to wash their hands any time they touch a
20 No. 13‐2115
bird. See Keeping Backyard Poultry, CENTERS FOR DISEASE
CONTROL AND PREVENTION,
http://www.cdc.gov/features/salmonellapoultry/, (last visit‐
ed Mar. 13, 2014). There is nothing voluntary about the
washing process during the middle of the day.
My colleagues reject both of the employees’ claims. They
do so by rejecting the long‐established “continuous work‐
day” principle that has always governed the FLSA and by
resolving disputed facts over the amount of time the don‐
ning, doffing, and washing process takes in this particular
case. In my view, they have erred as a matter of law, and
they have gone beyond the proper appellate role. I therefore
dissent.
I begin with the legal framework established by the
FLSA, and then I turn to the way I believe it should apply to
this workplace. I conclude with a word about the state‐law
claim.
I
The critical section of the FLSA for present purposes is 29
U.S.C. § 203(o), which was added to the statute in 1947 by
the Portal‐to‐Portal Act, 61 Stat. 84. For convenience, I repro‐
duce it here:
(o) Hours Worked.—In determining for the
purposes of sections 206 and 207 of this title
the hours for which an employee is employed,
there shall be excluded any time spent in
changing clothes or washing at the beginning
or end of each workday which was excluded
from measured working time during the week
involved by the express terms of or by custom
No. 13‐2115 21
or practice under a bona fide collective‐
bargaining agreement applicable to the par‐
ticular employee.
Because section 203(o) permits employers and unions to bar‐
gain only over the compensation for time spent changing
clothes “at the beginning or end of each workday,” see, e.g.,
Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 880–81 (2014), the
first question on the table is what the word “workday”
means in this context.
This is not a question of first impression for the federal
courts. In fact, even though the term “workday” is not de‐
fined in the statute, the Department of Labor has defined it
in a long‐standing regulation, as follows:
(b) “Workday” as used in the Portal Act
means, in general, the period between the
commencement and completion on the same
workday of an employee’s principal activity or
activities. It includes all time within that period
whether or not the employee engages in work
throughout all of that period. For example, a
rest period or a lunch period is part of the
“workday,” and section 4 of the Portal Act
therefore plays no part in determining whether
such a period, under the particular circum‐
stances presented, is or is not compensable, or
whether it should be included in the computa‐
tion of hours worked. If an employee is re‐
quired to report at the actual place of perfor‐
mance of his principal activity at a certain spe‐
cific time, his “workday” commences at the
time he reports there for work in accordance
22 No. 13‐2115
with the employer’s requirement, even though
through a cause beyond the employee’s con‐
trol, he is not able to commence performance of
his productive activities until a later time. In
such a situation the time spent waiting for
work would be part of the workday, and sec‐
tion 4 of the Portal Act would not affect its in‐
clusion in hours worked for purposes of the
Fair Labor Standards Act.
29 C.F.R. § 790.6(b).
The suggestion that one eight‐hour workday can be di‐
vided into two four‐hour “days” (or maybe four two‐hour
“days,” if rest breaks are considered) is incompatible with
this authoritative definition. The reference in the first sen‐
tence of the regulation to “commencement” and “comple‐
tion” of tasks within one day can mean only that lunch
breaks and rest breaks occur within those outer boundaries
(as the third sentence explicitly says). Nothing in 29 C.F.R.
§ 790.6(b) leaves room for the possibility that one might
break an eight‐hour workday into partial “days” of four
hours each (or perhaps even smaller units). It is true that the
regulation says that “in general” a workday extends from
the commencement to the completion of the employee’s
tasks. The majority argues that this qualification is triggered
here, when they assert that “there is compelling reason to
recognize an exception [to the eight‐hour continuous day] in
this case.” Ante at 6. I see no reason at all to do so, compel‐
ling or otherwise. Indeed, I cannot imagine a workplace that
could not operate under two four‐hour “days” rather than
one continuous eight‐hour day. In effect, the majority has
held that this regulation is incompatible with the statute. It
No. 13‐2115 23
does so without going through any of the normal analysis
that would justify disregard of an administrative agency’s
longstanding interpretation of a law that it is charged to im‐
plement. I do not see it that way. Because I find nothing unu‐
sual about the poultry processing facilities here, I would
hold that section 790.6(b) requires us to find that the “work‐
day” here extends from the time the employee reports to
work until the time he is free to clock out for the day. Various
breaks that may or may not be compensable time occur
within those outer boundaries. Because section 203(o) per‐
mits employers and unions to bargain over the compensabil‐
ity of time spent changing clothes only “at the beginning or
end of each workday,” the most straightforward reading of
the statute shows that donning, doffing, and cleaning that
occurs in the middle of the workday is not within the ambit
of section 203(o)’s exclusion.
The majority’s argument for avoiding section 203(o)’s
plain language by breaking a single eight‐hour workday into
two four‐hour days calls into question the applicability of
the continuous workday doctrine across the board. Yet the
Supreme Court accepted that doctrine in IBP, Inc. v. Alvarez,
546 U.S. 21, 29 (2005). Workers must be compensated for
time spent doing what might otherwise be non‐compensable
activities under the Portal‐to‐Portal Act if those activities oc‐
cur between the commencement of the employee’s first prin‐
cipal activity and the completion of his last principal activity
on any workday and are not otherwise exempt (i.e. for a bona
fide lunch break). 29 C.F.R. § 790.6(a).
Under the majority’s interpretation, an employer that re‐
quires an employee to walk, midday, from one principal
work activity to another (perhaps from the sewing room to
24 No. 13‐2115
the steaming room) would be able to render that otherwise
compensable time non‐compensable by telling the employee
that one “workday” ended when he left the sewing room,
and a new “workday” started when he entered the steaming
room. Such a rule would effectively eliminate the continuous
workday concept. I freely accept that Congress could amend
section 203(o) tomorrow to reject the continuous workday
notion, but it has not done so yet. For FLSA purposes, I agree
with the majority only insofar as it holds that the parties are
free to bargain about the coverage of donning, doffing, and
washing time at the beginning and the end of the full work‐
day.
Looking at the language of section 203(o), and taking into
account the definition of “workday” found at 29 C.F.R.
§ 790.6(b), I would find that the workers are entitled to be
paid for time spent donning, doffing, and washing up at any
time after they first start working and before they finish their
last task of the day. They are thus, in my view, presumptive‐
ly entitled to be compensated for their lunch break donning,
doffing, and cleaning. (I address the possible exception for de
minimis activities below.) Because section 203(o) permits em‐
ployers and unions to bargain only over the compensability
of time spent changing clothes “at the beginning or end of
each workday,” they cannot bargain away worker compen‐
sation for mid‐day breaks, whether at lunchtime or at other
times. This may help the workers, as plaintiffs here believe,
or it may ultimately reduce their power at the bargaining ta‐
ble, because it gives them one less chip to play, as my col‐
leagues predict. But this is the system that the FLSA creates,
and the workers are entitled to enforce their rights under ex‐
isting law.
No. 13‐2115 25
II
My second objection to the majority’s opinion focuses on
its alternative holding, namely, that even if section 203(o)’s
exclusion does not apply to mealtime donning and doffing,
the time spent engaged in those activities in this case is de
minimis and thus non‐compensable at the threshold. This po‐
sition brushes past serious disputes of fact about how the
donning, doffing, and washing actually take place in this
workplace. I am startled, to say the least, to think that an ap‐
pellate court would resolve such a dispute based on a post‐
argument experiment conducted in chambers by a judge.
Ante at 9–10. As the majority concedes, this cannot be con‐
sidered as evidence in the case. To the extent (even slight)
that the court is relying on this experiment to resolve a dis‐
puted issue of fact, I believe that it has strayed beyond the
boundaries established by Federal Rule of Civil Procedure
56. (This is quite different, it seems to me, from including an
illustrative photograph whose accuracy presumably could
not be contested.) I note as well that this experiment pro‐
ceeded on the assumption that washing is not essential for
workers handling raw poultry—an assumption I have al‐
ready shown to be inconsistent with government regulations
for hygiene within a meat processing plant. Finally, there are
two other problems with the majority’s approach: it runs
afoul of the statutory definition of a bona fide lunch break,
and it fails to give effect to the Supreme Court’s recent rejec‐
tion of de minimis analysis in the donning and doffing con‐
text.
The record here leaves no doubt that the parties do not
agree on the central question of the amount of time it takes
at these workplaces to don and doff the required clothing
26 No. 13‐2115
and equipment and to wash up. The plaintiffs allege that it
typically takes workers from 10 to 15 minutes to don their
equipment at the beginning of the workday. They further
contend that the sanitary equipment must be put on and re‐
moved in an area isolated from the production floor, in order
to protect the raw poultry from contamination. The need to
go to the approved area adds to the time required to com‐
plete the donning and doffing activities. The employer
paints a much different picture—one that the majority has
decided to credit, despite the fact that this case reaches us on
an appeal from a grant of summary judgment. The employer
estimates that everything can be accomplished in one or two
minutes.
This is as material a dispute of fact as I can imagine, and
thus one that should have prevented disposition on sum‐
mary judgment. See FED. R. CIV. P. 56(a). And it is a factual
issue about which the employees have personal experience;
no one can complain that their affidavits about the time
these activities require lack proper foundation. In order to
choose between the employees’ and the employer’s estimates
of the necessary time, one needs to know additional facts
about what exactly the employer requires the workers to do.
If, as plaintiffs allege, the necessary doffing before lunchtime
and at the end of the day includes not merely removing the
equipment, but also washing and stowing the tools and
equipment, then it is easy to see how more time might be
necessary than would be needed for a simple change of
clothes. The Centers for Disease Control states that “it is not
unusual for raw poultry from any producer to have Salmo‐
nella bacteria.” Salmonella and Chicken: What You Should Know
and What You Can Do, CENTERS FOR DISEASE CONTROL AND
PREVENTION, http: // www . cdc . gov/ features/ salmonella‐
No. 13‐2115 27
chicken/ (last visited Mar. 16, 2014). Salmonella, it adds, is “an
important cause of human illness in the United States and
often linked to poultry”; some of that Salmonella is a multi‐
drug‐resistant strain. Id. It is essential for the health of the
worker, her fellow workers, and the consumers who will
consume the poultry products that a person who has been
steeped in raw poultry viscera for hours wash herself off be‐
fore eating. (For a chilling account of what can happen when
proper sanitation standards in a comparable industry (tur‐
key processing) are not followed, see Dan Barry, The ‘Boys’ in
the Bunkhouse, N.Y. TIMES MAG., Mar. 9, 2014, available at
http://www.nytimes.com/interactive/2014/03/09/us/the‐boys‐
in‐the‐bunkhouse.html (last visited Mar. 16, 2014).) In short,
the amount of time at issue is a question that must be devel‐
oped at trial; no amount of common sense, internet research,
or personal experience can substitute for that.
Second, as I have noted, the continuous workday doc‐
trine provides that workers must be compensated for time
they spend doing what might otherwise be non‐
compensable activities if those activities occur between the
commencement of the worker’s first principal activity and
the completion of her last principal activity on any workday.
See 29 C.F.R. § 790.6(a). For example, “[r]est periods of short
duration, running from 5 minutes to about 20 minutes, …
must be counted as hours worked.” 29 C.F.R. § 785.18. In
contrast to a rest period, a bona fide lunch period does not
count as “hours worked” and thus an employer does not
have to pay workers for that time. This makes the distinction
between a rest period of “short duration” and a bona fide
lunch period crucial. In order to qualify as a bona fide meal
period, “[t]he employee must be completely relieved from
duty for the purposes of eating regular meals.” 29 C.F.R.
28 No. 13‐2115
§ 785.19(a). The regulation recognizes that “ordinarily” 30
minutes or more is long enough for a bona fide meal period.
If, however, workers are required to walk to a donning and
doffing area, take off their outerwear and equipment, and
wash off raw chicken and blood; then go eat lunch; and then
return to the designated area, and suit up again, all during
their 30‐minute “meal break,” then those workers obviously
do not have a full 30 minutes in which to get their lunch and
eat.
If the meal break is actually shorter than 30 minutes, the
employer risks a finding that it has not provided a bona fide
meal period at all, for purposes of 29 C.F.R. § 785.19(a). That
would render the entire break period compensable, pursuant
to 29 C.F.R. § 785.18. Granted, a period shorter than 30
minutes “may be long enough under special conditions,” but
the statute does not specify what those special circumstances
might be. This, too, is a matter that can be resolved only with
a more complete factual record.
As I read the Supreme Court’s decision in Sandifer, this
court is not entitled to dismiss lunchtime washing, donning,
and doffing of clothing as “de minimis.” See 134 S. Ct. at 880
(“We doubt that the de minimis doctrine can properly be ap‐
plied to the present case. … [D]e minimis non curat lex is not
Latin for close enough for government work.”) As the Court rec‐
ognized, § 203(o) is “all about trifles—the relatively insignifi‐
cant periods of time in which employees wash up and put
on various items of clothing needed for their jobs.” Id. at 880.
Sandifer’s rejection of the de minimis doctrine in this context
established an important point: while putting on clothes and
washing may take very little time, courts should recognize
that § 203(o) was designed to treat that time specially if it oc‐
No. 13‐2115 29
curred at the beginning or end of the workday—that is, there
is a default rule that classifies it as time required for the job,
but the parties are permitted to vary that rule to make it
noncompensable under a collective bargaining agreement. If
the same activities occur in the middle of the day, the default
rule stands and no such exemption is permitted.
The Court’s rejection of the de minimis concept in the
clothing and washing context sheds light on the test the
Court did adopt, in an effort to spare federal judges from be‐
coming “time‐study professionals.” Id. at 880. The pertinent
question, the Court held, “is whether the period at issue can,
on the whole, be fairly characterized as ‘time spent in chang‐
ing clothes or washing.’” Id. at 880. The importance of the
conclusion is more nuanced than my colleagues imply, how‐
ever. If one is talking about the beginning or end of the
workday, whether the period meets the “on the whole” test
changes only whether employers and unions can bargain
about the extra minutes; it does not make the period categor‐
ically non‐compensable. Either the time is “on the whole”
spent changing clothes or washing, in which case unions can
bargain away compensation for that time, or the time “on
the whole” is spent otherwise, in which case § 203(o) does
not apply and the right to compensation for that time rises
or falls based on other criteria.
Even if the idea of a time “as a whole” is functionally
equivalent to de minimis analysis (and I have a hard time
coming to that conclusion in light of the Supreme Court’s
discussion), I am troubled by the majority’s assumption that
the amounts of time spent here fall below that threshold. We
should not evaluate each day, or part of a day, separately. In‐
stead, we should aggregate the amount of time the workers
30 No. 13‐2115
spend donning, doffing, and cleaning—time that otherwise
would be compensable. Accord Perez v. Mountaire Farms, Inc.,
650 F.3d 350, 373 (4th Cir. 2011), cert. denied, 132 S. Ct. 1634,
(2012) (“In applying the de minimis rule, we consider the ag‐
gregate amount of time for which the employees are other‐
wise legally entitled to compensation”) (citing DOL Wage &
Adv. Mem. No. 2006‐2 n.1 (May 31, 2006)). If, for example, it
takes an average employee four minutes at the beginning of
the lunch break to remove the special gear and to wash up,
and then two minutes at the end of the break to suit up
again, that amounts to six minutes (or 0.1 hour) out of the
30‐minute break (that is, 20% of the break). (Note that my
example does not come close to assuming that these activi‐
ties will consume 15 minutes out of a 30‐minute lunch break.
See ante at 10. But they do take up real time.) Multiply this
by the five days in an ordinary work‐week and one has a
half‐hour of time at stake. I cannot dismiss this as inconse‐
quential, given the realities that face most people whose jobs
put them within the group protected by the FLSA. I also see
nothing in the statute that would prevent the employer from
crediting employees with a reasonable time for these activi‐
ties. There is no more reason to assume that each employee’s
donning and doffing time would need to be measured indi‐
vidually on a daily basis than there is to think that any other
donning and doffing time must be handled that way. The
use of an average period would eliminate any benefit from
dawdling. It would be easy enough for an employer to speci‐
fy that the required time on the floor of the plant ends three
or four minutes before the lunch break, and starts up again
when the employee begins to re‐don his gear, if the employ‐
er wanted to avoid any overtime liability.
No. 13‐2115 31
I would find that these employees have the right in prin‐
ciple to compensation for their donning, doffing, and clean‐
ing time during their workday (and in particular before and
after lunch), and I would remand for trial to determine how
much time these activities actually consume. Given the limi‐
tations of the FLSA, I would affirm to the extent that the em‐
ployees pursue a federal right to exclude donning and doff‐
ing at the beginning and end of the workday, because section
203(o) permits the parties to make that a subject of collective
bargaining.
III
Last, I turn to the Illinois Minimum Wage Act. As the
amicus curiae brief filed by the State of Illinois stresses, Illi‐
nois has adopted a broader approach than the FLSA to the
definition of “hours worked.” The Illinois Minimum Wage
Act has been interpreted authoritatively by the Illinois De‐
partment of Labor to require compensation for “all the time
an employee is required to be on duty, or on the employer’s
premises, or at other prescribed places of work, and any ad‐
ditional time he or she is required or permitted to work for
the employer.” Ill. Admin. Code, tit. 56, § 210.110. This defi‐
nition is quite similar to the one the U.S. Supreme Court en‐
dorsed in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680
(1946). There the Supreme Court defined the “statutory
workweek” to “include[] 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. at 690‐91 (1946).
While Congress found the Supreme Court’s interpretation
too broad, and so amended the FLSA in 1947 to create cer‐
tain exceptions, the Illinois state regime has never aban‐
doned that rule. If the FLSA preempted contrary state laws,
32 No. 13‐2115
the fact that Illinois has chosen a different rule might be of
no importance. But, to the contrary, the FLSA includes a sav‐
ings clause that gives precedence to state laws with more
generous compensation schemes. 29 U.S.C. § 218(a); see Spo‐
erle v. Kraft Foods Global, Inc., 614 F.3d 427, 428–30 (7th Cir.
2010).
The result my colleagues have reached cannot be squared
with the plain language of the Illinois law. In direct contra‐
diction to the views of the Illinois Attorney General, they
have found that Illinois law must be read the same way as
the federal law. The savings clause, however, tells us that
Congress has not required this result, and the Illinois De‐
partment of Labor has made it clear that it has not chosen to
follow federal law in this respect. This matter is of sufficient‐
ly great importance to the state that the Attorney General
has asked this court to certify the question to the Supreme
Court of Illinois, if we were to find any doubt about the mat‐
ter. Rather than resolve this issue, I would grant the Attorney
General’s request. The question is an important one for both
employers and workers in the state, and it thus stands a
good chance of meeting the certification requirements set out
in Ill. Sup. Ct. R. 20. I would thus submit a proper request to
that court under Seventh Circuit Local Rule 52.
*****************
In conclusion, I respectfully dissent from the majority’s
decision to affirm the judgment of the district court. As I
read the Illinois Minimum Wage Act, plaintiffs are entitled to
compensation for their donning, doffing, and washing time
both at the beginning and end of the workday and during
their lunch break. The FLSA independently protects their
right to compensation for the lunch‐break time. I would re‐
No. 13‐2115 33
mand this case for fact‐finding on exactly how much time
this is.