United Food & Commercial Workers Union, Local 1473 v. Hormel Foods Corp.

2016 WI 13

SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP1880
COMPLETE TITLE: United Food & Commercial Workers Union, Local
1473, Dennis
A. Warne, Charles R. Seeley and Pamela Collins,
Plaintiffs-Respondents,
v.
Hormel Foods Corporation,
Defendant-Appellant.

ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED: March 1, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 5, 2015

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Rock
JUDGE: Michael R. Fitzpatrick

JUSTICES:
CONCUR & DISSENT: ROGGENSACK, C.J., PROSSER, J., concur and
dissent. (Opinion Filed)
DISSENTED: Gableman, Ziegler, J.J., dissent. (Opinion
Filed)
NOT PARTICIPATING: R.G. Bradley, J., did not participate.

ATTORNEYS:
For the defendant-appellant, there were briefs by Thomas P.
Krukowski and Whyte Hirschboeck Dudek, S.C., Milwaukee, and oral
argument by Thomas P. Krukowski.

For the plaintiffs-respondents, there was a brief by Mark
A. Sweet and Sweet and Associates, LLC, Milwaukee, and oral
argument by Mark A. Sweet.
 2016 WI 13
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP1880
(L.C. No. 2010CV2595)

STATE OF WISCONSIN : IN SUPREME COURT

United Food & Commercial Workers Union, Local
1473, Dennis A. Warne, Charles R. Seeley and
Pamela Collins,

Plaintiffs-Respondents, FILED
v. MAR 1, 2016
Hormel Foods Corporation, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.

APPEAL from a judgment and order of the Circuit Court for

Rock County, Michael R. Fitzpatrick, Judge. Affirmed.

¶1 SHIRLEY S. ABRAHAMSON, J. This is an appeal from a

judgment and order of the circuit court for Rock County, Michael

R. Fitzpatrick, Judge, in favor of United Food & Commercial

Workers Union, Local 1473 (and various individuals1), the

1
Dennis A. Warne, Charles R. Seeley, and Pamela Collins
join as plaintiffs. We refer only to the Union as the plaintiff
for simplicity.
 No. 2014AP1880

plaintiffs, against Hormel Foods Corporation, the defendant.

The court of appeals certified the appeal to this court pursuant

to Wis. Stat. § 809.61 (2013-14).2

¶2 This is a "donning and doffing" wage and hour case.

Employees seek compensation for time spent putting on

("donning") and taking off ("doffing") company-required clothing

and equipment before and after shifts at Hormel's canning plant

located in Beloit, Wisconsin.

¶3 The Union filed a class action on behalf of a class of

current and former employees in Hormel's plant, alleging that

Hormel violated Wisconsin wage and hour laws by failing to pay

the employees for time spent at the plant putting on and taking

off the required clothing and equipment. Because the time spent

putting on and taking off the required clothing and equipment is

not included in the employees' compensation, the Union asserts

that the employees are working more than 40 hours per week

without being paid overtime.

¶4 The certification presents two questions:
(1) Is the donning and doffing of the company-

required clothing and equipment compensable work

time or non-compensable preliminary and

2
All subsequent references to the Wisconsin statutes are to
the 2013-14 version unless otherwise indicated.

2
 No. 2014AP1880

postliminary activities under Wis. Admin. Code

§ DWD 272.12(2)(e) (Feb. 2009)3; and

(2) Even if the time spent donning and doffing is

otherwise compensable work time, is this time

non-compensable under the doctrine of de minimis

non curat lex?

¶5 After a bench trial, the circuit court issued a

comprehensive decision holding in favor of the Union and

requiring Hormel to compensate its employees for time spent

donning and doffing the required clothing and equipment at the

plant at the beginning and end of the day and during unpaid meal

periods (for the one percent of employees who left the plant

during their meal periods). The circuit court further held,

"Hormel has failed to carry its burden to show the applicability

of the de minimis doctrine, and, therefore, that doctrine is not

controlling (assuming it exists at all in Wisconsin law)."

¶6 Based on these conclusions, the circuit court awarded

the class monetary damages of $195,087.30 broken down as
follows: (1) $180,087.30 in unpaid wages for 5.7 minutes per

day spent donning and doffing the required clothing and

equipment; and (2) pursuant to a stipulation of the parties,

$15,000 in damages for unpaid meal periods.

¶7 We conclude:

3
All subsequent references to the Wisconsin Administrative
Code are to the February 2009 register date unless otherwise
noted.

3
 No. 2014AP1880

(1) Wisconsin Admin. Code § DWD 272.12 requires Hormel

to compensate its employees for the 5.7 minutes

per day spent donning and doffing the clothing and

equipment at the beginning and end of the day.

Relying on the Tyson Foods case, Weissman v. Tyson

Prepared Foods, Inc., 2013 WI App 109, 350

Wis. 2d 380, 838 N.W.2d 502, as did the circuit

court, we conclude, as did the circuit court, that

the employees' donning and doffing clothing and

equipment at the beginning and end of the day

brought Hormel into compliance with federal food

and safety regulations and was integral and

indispensable to sanitation and safety in the

employees' principal work activities, namely food

production.4

(2) The donning and doffing of clothing and equipment

at the beginning and end of the day does not fall

within the doctrine of de minimis non curat lex.
The wages involved are not a "trifle" either for

the employees or for Hormel.

4
The court granted review in the Tyson Foods case. See
Weissman v. Tyson Prepared Foods, Inc., 2013 WI App 109, 350
Wis. 2d 380, 838 N.W.2d 502, review granted, 2014 WI 3, 352
Wis. 2d 351, 842 N.W.2d 359. The review was dismissed prior to
argument or a decision by this court, however, when the parties
settled the litigation.

4
 No. 2014AP1880

¶8 We also briefly address whether the time spent donning

and doffing Hormel's required clothing and equipment during meal

periods is considered compensable work time.

¶9 On appeal Hormel argues that the Tyson Foods case was

wrongly decided and "puts state law at odds with federal

authority, namely, with the U.S. Supreme Court's holding" in a

recent decision, Integrity Staffing Solutions, Inc. v. Busk, 135

S. Ct. 513 (2014). As a result, Hormel asks us to overturn

Tyson Foods. We conclude that the discussion in Tyson Foods

relating to compensating its employees for time spent donning

and doffing the required clothing and equipment at the plant at

the beginning and end of the day does not contravene Integrity

Staffing.

I

¶10 The parties stipulated to many facts, and the circuit

court also made numerous findings of fact following a bench

trial. None of the circuit court's findings of fact are clearly

erroneous. Here are the relevant facts.
¶11 The class consists of approximately 330 persons who

are or were hourly employees of Hormel at the Beloit canning

facility. We will refer to the class members as "the

employees."

¶12 Hormel is a multi-national food company incorporated

in Delaware and headquartered in Austin, Minnesota. The Union

agreed that Hormel is a fine employer with a quality record and

a history of producing good, safe food for customers around the
world.
5
 No. 2014AP1880

¶13 Hormel's Beloit canning facility prepares, cooks,

cans, and ships a variety of "shelf stable" products including

Hormel Chili, Mary Kitchen Hash, and Chi-Chi's Salsa, primarily

for sale to consumers in retail stores. A "shelf stable"

product can be stored almost indefinitely and without

refrigeration.

¶14 The Beloit canning facility operates like an assembly

line. Raw ingredients enter at one end of the facility and are

stored in a cooler or dry storage. Products (which may consist

of meat and seasoning ingredients) are out in the open in about

one-half of the plant.

¶15 Employees grind and blanch the meat, and cook and can

the product. A sophisticated, high-temperature, heavy-pressure

process is used to make the product shelf stable. The product

is moved to areas designated for pickup to ship to distribution

centers or retailers.

¶16 Regulations promulgated by the United States

Department of Agriculture (USDA), the United States Food and
Drug Administration (FDA), and the federal Occupational Safety

and Health Administration (OSHA) govern Hormel's production

facilities. Products containing meat are regulated by the

United States Department of Agriculture Food Safety Inspection

Service. Products not containing meat are regulated by the

United States Food and Drug Administration. The federal

Occupational Safety and Health Administration regulates

workplace safety.

6
 No. 2014AP1880

¶17 Federal regulations require Hormel to meet standards

of cleanliness, quality, and safety in its plant and products.

For example, the federal regulations require that persons

working with food protect against contamination of food by

maintaining hygienic practices like washing hands and wearing

clean outer garments. While the federal regulations set forth

performance standards, they generally do not require these

standards be satisfied in any particular manner.

¶18 Hormel has adopted Work Rules in an effort to meet

performance standards, maintain sanitation, and protect

employees and consumers. The Work Rules require that employees

wear certain clothing and equipment. If employees do not wear

the required clothing and equipment, the employees are subject

to discipline, up to discharge.

¶19 Specifically, Hormel's Work Rules require employees

wear Hormel-provided hard hats, hearing protection, and eye

protection. All exposed head and facial hair must be covered by

a hair net. Employees are to wear clean and sanitary footwear
at all times.5 Clothing is provided by Hormel and must be

changed daily or more often (as good sanitation practices

dictate) and shall not be worn outside the plant. Hormel leases

the clothes from Aramark, which picks up worn clothes, launders

them, and drops off clean clothes.

5
The shoes must be kept at the facility and are called
"captive shoes."

7
 No. 2014AP1880

¶20 Hormel does not compensate employees for time spent

putting on or taking off (donning and doffing) the required

clothing and equipment at the beginning and end of the day.

¶21 The parties stipulated that the median time for

donning and doffing the required clothing and equipment at the

beginning and end of the day, washing hands, and walking to and

from the assigned work stations was 5.7 minutes per day, 28.5

minutes per week, or approximately 24 hours per year.6

¶22 The employees must "swipe in" between 1 and 29 minutes

before the scheduled start of their shift. The employees must

have their clothes changed, be swiped in, and be at their

6
This stipulation includes not just the time spent donning
and doffing the required clothing and equipment, but also time
spent washing hands and walking to and from workstations.
Nonetheless, under Wis. Admin. Code § DWD 272.12(1)(a)2., the
"workday" is defined as "the period between 'the time on any
particular workday at which such employee commences their
principal activity or activities' and 'the time on any
particular workday at which they cease such principal activity
or activities.'"

Because we hold that donning and doffing the required
clothing and equipment at the beginning and end of the day is
integral and indispensable to the employees' principal work
activity of food preparation, the donning and doffing is itself
a principal work activity. See IBP, Inc. v. Alvarez, 546 U.S.
21, 37 (2005) ("[W]e hold that any activity that is 'integral
and indispensable' to a 'principal activity' is itself a
'principal activity . . . .'"). As a result, the time spent
walking to or from workstations or washing hands occurs after
the employees' "workday" begins and is thus compensable. See
IBP, 546 U.S. at 37 ("Moreover, 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 . . . covered by the FLSA.").

8
 No. 2014AP1880

workstations at their assigned start times or they will be

considered tardy. The employees are paid by Hormel beginning at

the scheduled start of their shift, not at the time of swiping

in.

¶23 As a result, the employees are not paid for the time

spent putting on their clothing and equipment before the

scheduled start of their shift. The employees are also not paid

for a 30-minute meal period. To leave the facility during the

30-minute meal period, the employees must doff their clothing

and equipment before leaving the facility and don their clothing

and equipment before returning to work.

¶24 Upon completion of the assigned duties for the day and

after being released from work, the employees must "swipe out"

and change back into their street clothes.

¶25 The employees are paid until they officially "swipe

out." Thereafter, the employees must change from their required

clothing and equipment into their street clothes. As a result,

the employees are not paid for the time spent taking off their
clothing and equipment after they swipe out.

¶26 In sum, the paid "workday" for employees at Hormel is

measured from the scheduled commencement of the shift to the

swipe out at the electronic clock after release by the

supervisor less 30 minutes for the employees' meal period.

¶27 The circuit court found, on the great weight of the

credible evidence, that putting on and taking off the clothing

and equipment required by Hormel at the beginning and end of the
day is integral and indispensable to the performance of the
9
 No. 2014AP1880

employees' principal activities. According to the circuit

court, a close connection exists between the donning and

doffing; compliance with the federal regulations of the United

States Department of Agriculture, the Food and Drug

Administration, and Occupational Safety and Health

Administration; and the employees' principal activities,

producing canned food.

II

¶28 The standard of review applicable to the instant case

is oft stated and is as follows:

¶29 This court will not overturn factual findings of the

circuit court unless the findings are clearly erroneous.

Royster-Clark, Inc. v. Olsen's Mill, Inc., 2006 WI 46, ¶11, 290

Wis. 2d 264, 714 N.W.2d 530.

¶30 The appeal revolves around the interpretation and

application of Wis. Admin. Code § DWD 272.12. When interpreting

administrative regulations the court uses the same rules of

interpretation as it applies to statutes. Wis. DOR v. Menasha
Corp., 2008 WI 88, ¶45, 311 Wis. 2d 579, 754 N.W.2d 95.

Interpretation and application of a regulation is ordinarily a

question of law that this court determines independently of the

circuit court or court of appeals, but benefiting from the

analysis of the other courts. State v. Brown, 2006 WI 131, ¶18,

298 Wis. 2d 37, 725 N.W.2d 262.

¶31 To determine the meaning of a regulation, we turn

first to the text. Each word shall be interpreted so as to give
it meaning, and none shall be treated as superfluous. See In re
10
 No. 2014AP1880

Guardianship of James D.K., 2006 WI 68, ¶16, 291 Wis. 2d 333,

718 N.W.2d 38. The context of the regulation and case law

interpreting the regulation are also considered.

¶32 The parties dispute whether a circuit court's findings

that an activity is integral and indispensable to the employees'

principal activities is a question of fact or a question of law.

If the question is one of fact, this court will not overturn the

factual findings of the circuit court unless the findings are

clearly erroneous. Wis. DOR, 311 Wis. 2d 579, ¶45. If the

question is one of law, this court decides the question

independently while benefiting from the analyses of the circuit

court and court of appeals. Wis. DOR, 311 Wis. 2d 579, ¶44;

Brown, 298 Wis. 2d 37, ¶18.

¶33 The Union raised the issue of the standard of review

in its response brief, relying on a treatise that states,

without citation, that "[w]hether an activity is characterized

as . . . 'an integral and indispensable part' of the employee's

principal activities (as distinguished from preliminary or
postliminary to those activities), is a question of fact to be

determined from all the circumstances."7

¶34 In reply, Hormel argued that the facts are undisputed

and the interpretation and application of the regulations to

undisputed facts is a question of law that the court decides

independently of the circuit court or court of appeals.

7
See Laurie E. Leader, Wages and Hours: Law & Practice
§ 6.03[7], at 6-30 (2015).

11
 No. 2014AP1880

¶35 We need not decide this issue. Whether we examine the

questions certified as ones of fact or law, we conclude the

circuit court reached the correct decision.8

III

¶36 We examine first whether the time spent donning and

doffing Hormel's required clothing and equipment at the

beginning and end of the day is considered compensable work time

or non-compensable preliminary and postliminary activities under

Wis. Admin. Code § DWD 272.12(2)(e).

¶37 The Department of Workforce Development regulations

determining an employee's work hours are found in Wis. Admin.

Code § DWD 272.12.

8
In the circuit court, the parties also disagreed about the
burden of proof. The Union argued that it would have the burden
of proof to demonstrate that the acts at issue are "work," and
the burden would then shift to Hormel to demonstrate that the
acts are noncompensable. Hormel disagreed with the Union's
description of the burden of proof, although Hormel agreed that
it had the burden of proof on the application of the de minimis
doctrine.

The circuit court stated that the (undefined) burdens of
proof were on the respective parties by the greater weight of
the credible evidence. The circuit court viewed Hormel as
having the burden of proof on the application of the de minimis
doctrine.

In this court, neither party raises the issue of the
allocation of the burdens of proof. As a result, we do not
address the issue. See State v. Gracia, 2013 WI 15, ¶28 n.13,
345 Wis. 2d 488, 826 N.W.2d 87 (stating "we do not usually
address undeveloped arguments"). Regardless of the allocation
of the burdens of proof, we conclude the circuit court's
decision was correct.

12
 No. 2014AP1880

¶38 Wisconsin Admin. Code § DWD 272.12(1)(a)1. provides

that an employee must be paid "for all time spent 'in physical

or mental exertion . . . controlled or required by the employer

and pursued necessarily and primarily for the benefit of the

employer's business.'"9

¶39 The parties agree that the donning and doffing are

physical or mental exertion; are required by Hormel; and are

pursued necessarily and primarily for the benefit of Hormel's

business.

¶40 Compensable time is defined in the regulations in

terms of a "workday." See Wis. Admin. Code § DWD 272.12(1)(a)2.

Workday is defined as the "period between 'the time on any

particular workday at which such employee commences their

principal activity or activities' and 'the time on any

particular workday at which they cease such principal activity

or activities.'"10

9
Wisconsin Admin. Code § DWD 272.12, titled "Interpretation
of hours worked," states in (1)(a)1.:

(1) Principles for determination of hours worked. (a)
General requirements of sections. 1. Employees subject
to the statutes must be paid for all time spent in
"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's business." The workweek ordinarily
includes "all time during which an employee is
necessarily required to be on the employer's premises,
on duty or at a prescribed work place."
10
Wisconsin Admin. Code § DWD 272.12(1)(a)2. states:

(continued)
13
 No. 2014AP1880

¶41 This regulation leads us to the meaning of the phrase

"principal activity or activities" of the employee.
¶42 "[P]rincipal activities" is defined in Wis. Admin.

Code § DWD 272.12(2)(e) to include all activities that are "an

integral part of a principal activity." (Emphasis added.)

"Among the activities included as an integral part of the

principal activity are those closely related activities which

are indispensable to its performance."11 In other words, an

integral part of a principal activity includes activities that

are closely related to the principal activity and indispensable

to its performance.12

¶43 The regulation gives three examples of "what is meant

by an integral part of a principal activity" justifying

compensation for an employee. The third example relates to a

chemical plant worker who dons and doffs clothing and equipment.

This example seems closest to the facts of the instant case, and

'Workday,' in general, means the period between 'the
time on any particular workday at which such employee
commences their principal activity or activities' and
'the time on any particular workday at which they
cease such principal activity or activities.' The
'workday' may thus be longer than the employee's
scheduled shift, hours, tour of duty, or time on the
production line. Also, its duration may vary from day
to day depending upon when the employee commences or
ceases their 'principal' activities (emphasis added).
11
See Wis. Admin. Code § DWD 272.12(2)(e)c. (emphasis
added).
12
See Tyson Foods, 350 Wis. 2d 380, ¶26.

14
 No. 2014AP1880

is therefore most helpful in deciding the instant case. Here

are the three examples in the regulations:

a. In connection with the operation of a lathe, an
employee will frequently, at the commencement of their
workday, oil, grease, or clean their machine, or
install a new cutting tool. Such activities are an
integral part of the principal activity, and are
included within such term.

b. In the case of a garment worker in a textile mill,
who is required to report 30 minutes before other
employees report to commence their principal
activities, and who during such 30 minutes distributes
clothing or parts of clothing at the workbenches of
other employees and gets machines in readiness for
operation by other employees, such activities are
among the principal activities of such employee. Such
preparatory activities are compensable under this
chapter.

c. Among the activities included as an integral part
of the principal activity are those closely related
activities which are indispensable to its performance.
If an employee in a chemical plant, for example,
cannot perform their principal activities without
putting on certain clothes, changing clothes on the
employer's premises at the beginning and end of the
workday would be an integral part of the employee's
principal activity. On the other hand, if changing
clothes is merely a convenience to the employee and
not directly related to their principal activities, it
would be considered as a "preliminary" or
"postliminary" activity rather than a principal part
of the activity. However, activities such as checking
in and out and waiting in line to do so would not

15
 No. 2014AP1880

ordinarily be regarded as integral parts of the
principal activity or activities.13
¶44 To determine whether the Hormel-required donning and

doffing are merely incidental preparatory and concluding

activities or are integral and indispensable to the employees'

primary activities, we examine the third example, which we shall

refer to as "the chemical plant example," and its interpretation

and application by the court of appeals in Weissman v. Tyson

Prepared Foods, Inc., 2013 WI App 109, 350 Wis. 2d 380, 838

N.W.2d 502. We shall refer to this case as the Tyson Foods

case.

¶45 The plaintiffs in Tyson Foods were employees of a meat

processing plant in Jefferson County, Wisconsin, operated by

Tyson Prepared Foods, Inc. Tyson Foods required its employees

to put on sanitary clothing and equipment before they began

13
This Wisconsin regulation is substantially similar to
federal regulations addressing the phrase "principal activity or
activities." Compare Wis. Admin. Code § DWD 272.12(2)(e) with
29 C.F.R. § 785.24 and 29 C.F.R. § 790.8(b)-(c). Specifically,
the federal regulations provide the exact same three examples
that § DWD 272.12(2)(e) provides to clarify when an activity is
an "integral part of a principal activity" for which employees
must receive compensation.

The history and purposes of the Fair Labor Standards Act,
federal regulations, Wisconsin law and regulations, and case law
interpreting the statutes and regulations are set forth at
length in prior cases and need not be repeated here. See, e.g.,
Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513, 516-
18 (2014); Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 875-76
(2014); Tyson Foods, 350 Wis. 2d 380, passim.

16
 No. 2014AP1880

their duties for each shift and to take off these items at the

end of their shifts.14

¶46 The clothing and equipment involved in Tyson Foods are

very similar to those in the instant case: hair nets; beard

nets; frocks (a coat with snaps in front); vinyl gloves; vinyl

sleeves; lightweight hard hats; safety glasses; ear plugs; and

"captive shoes."15

¶47 In Tyson Foods, the court of appeals began its

analysis with Wis. Admin. Code § DWD 272.12(1)(a)1. and

determined that Tyson Foods controlled the employees' clothing

and equipment and that requiring employees to put on and take

off the required clothing and equipment primarily benefited the

employer.16 Although the court of appeals viewed this initial

inquiry as necessary, the court of appeals did not consider it

dispositive.17

¶48 The Tyson Foods court of appeals then turned its

inquiry to whether the period of contested compensation is

included as a "principal activity," as distinguished from

14
Tyson Foods, 350 Wis. 2d 380, ¶4.
15
Tyson Foods, 350 Wis. 2d 380, ¶4.
16
The court of appeals concluded that the donning and
doffing activities were required and controlled by Tyson Foods
and primarily benefited the employer, satisfying the initial
inquiry. Tyson Foods, 350 Wis. 2d 380, ¶¶17, 22.
17
Tyson Foods, 350 Wis. 2d 380, ¶¶17, 23.

17
 No. 2014AP1880

"preparatory and concluding activities," under Wis. Admin. Code.

§ DWD 272.12(2)(e).18

¶49 The court of appeals concluded in Tyson Foods that the

donning and doffing are compensable because they are integral

and indispensable to the principal work activities of the

employees in manufacturing food.

¶50 The court of appeals in Tyson Foods relied primarily

on the chemical plant example set forth in Wis. Admin. Code

§ DWD 272.12(2)(e)(1)c. to analyze the issue. In this example,

as set forth in full above, a chemical plant employee is

entitled to compensation for time spent to don and doff

protective clothing and equipment at the employer's premises.

¶51 Comparing the chemical plant employees and the Tyson

Foods employees, the court of appeals determined that the

chemical plant example in the regulations is analogous to the

donning and doffing of the Tyson Foods clothing and equipment.19

¶52 In both the chemical plant example and Tyson Foods,

safety laws, rules of the employer, and the nature of the work
all require the employees to change clothes to do their

respective jobs in the chemical plant and at the Tyson Foods

processing plant.20 In the Tyson Foods case, there was no

serious dispute that Tyson Foods required employees to don most

18
Tyson Foods, 350 Wis. 2d 380, ¶23.
19
Tyson Foods, 350 Wis. 2d 380, ¶¶26, 28-29, 32, 37.
20
Tyson Foods, 350 Wis. 2d 380, ¶32.

18
 No. 2014AP1880

if not all items to keep food from being contaminated, to

operate more efficiently, and to limit Tyson Foods' liability

for and costs associated with employees' injuries.21

¶53 Although Tyson Foods gave short shrift to the

undisputed fact that its employees were required to don most of

the clothing and equipment to protect the meat-consuming public

from unappealing or even health-threatening food, the court of

appeals did not. Certain of these items were worn at least in

part to prevent contamination of food.22 To the court of

appeals, "needing to avoid food contamination plainly adds to

the indispensability of the donning and doffing."23

¶54 The court of appeals concluded that donning and

doffing clothes and equipment in the Tyson Foods case was

indispensable for the safety of the employees and the safety of

the food they help produce.24 Thus, the time for donning and

doffing was compensable.

¶55 The Tyson Foods case presents essentially the same

fact situation as presented in the instant case.
¶56 Both Tyson Foods and Hormel operate food processing

plants in Wisconsin subject to the same Wisconsin laws. The

clothing and equipment requirements for employees of each

21
Tyson Foods, 350 Wis. 2d 380, ¶28.
22
Tyson Foods, 350 Wis. 2d 380, ¶4.
23
Tyson Foods, 350 Wis. 2d 380, ¶36.
24
Tyson Foods, 350 Wis. 2d 380, ¶31.

19
 No. 2014AP1880

company are essentially the same. Likewise, the clothing and

equipment requirements for employees of each company serve

essentially the same purposes: the safety of the employees and

the safety of the food they help produce.

¶57 The testimony with regard to the purposes of Hormel's

Work Rules is similar to the undisputed facts in Tyson Foods.

¶58 The Corporate Manager of Regulatory Compliance at

Hormel testified that because Hormel's process is regulated both

by the Food and Drug Administration and United States Department

of Agriculture, Hormel employees are required "to be clean in a

manner to prevent product alteration or the general creation of

unsanitary type conditions."

¶59 When asked whether Hormel's clothing and equipment

requirements were to comply with federal regulations, the

Corporate Manager replied, "They are. . . . The government just

kind of gives us what they call performance standards you know,

hey, look, we know there's various means to the ends." The

required donning and doffing of the sanitary company clothing
and equipment at the Beloit facility is a "means to an end,"

complying with the federal regulations regarding food sanitation

and workplace safety.

¶60 Although several Hormel employees testified that they

could do their assigned job function at Hormel without the aid

of the donned and doffed items, Hormel's plant operation

required proper sanitation standards and protective equipment to

meet the federal regulations. Cleanliness and food safety are
"intrinsic element[s]" of preparing and canning food at the
20
 No. 2014AP1880

Hormel canning facility. The clothing and equipment is integral

and indispensable to the performance to the employees' job

function (principal work activity) of preparing canned food.

See Wis. Admin. Code § DWD 272.12(e)1.c.

¶61 Hypothetically the Hormel employees may be able to do

their jobs in street clothes, however Hormel's Work Rules and

Hormel's need to comply with federal regulations have created a

tight connection between the donning and doffing and the

principal activities of the employees.

¶62 In Tyson Foods and in the instant case, the clothing

and equipment requirements at the beginning and end of the day

are integral and indispensable to the employees' principal work

activities. Putting on and taking off the required clothing and

equipment at the beginning and end of the day is tied directly

to the work the employees were hired to perform——food

production——and cannot be eliminated altogether without

degrading the sanitation of the food or the safety of the

employees.
¶63 The employees in Tyson Foods and in the instant case

were compelled by the nature of their jobs in food production to

change clothing and wear equipment to ensure food and employee

safety. The nature of the employees' work makes the employer's

requirement of putting on and taking off clothing and equipment

at the beginning and end of the day an integral part of the

employees' principal activity.

¶64 Hormel dismisses Tyson Foods, contending that the
Tyson Foods case "puts state law at odds with federal authority,
21
 No. 2014AP1880

namely, with the United States Supreme Court holding" in a

recent decision, Integrity Staffing Solutions, Inc. v. Busk, 135

S. Ct. 513 (2014). As a result, Hormel urges us to overturn

Tyson Foods.

¶65 Integrity Staffing does not conflict with Tyson Foods.

Because the Wisconsin administrative regulations at issue here

are substantially similar to federal regulations, federal cases

may assist in our analysis. See Tyson Foods, 350 Wis. 2d 380,

¶44; see also State v. Gudenschwager, 191 Wis. 2d 431, 439, 529

N.W.2d 225 (1995).

¶66 In Integrity Staffing, one of the federal regulations

involved was substantially similar to Wis. Admin. Code § DWD

272.12(e); indeed the federal regulations use an illustration

substantially similar to the chemical plant example in the

Wisconsin regulations.25

¶67 The employees in Integrity Staffing worked in a

warehouse retrieving products from shelves and packaging the

products for delivery to Amazon.com customers.26 Integrity
Staffing's employees were required to undergo antitheft security

screening before leaving the warehouse each day.27 The question

presented to the United States Supreme Court was whether the

employees' time spent waiting to undergo and then undergoing the

25
See 29 C.F.R. § 790.8(c).
26
Integrity Staffing, 135 S. Ct. at 515.
27
Integrity Staffing, 135 S. Ct. at 515.

22
 No. 2014AP1880

security screenings was compensable under the Fair Labor

Standards Act.

¶68 The federal court of appeals upheld the employees'

claim for compensation viewing the screenings as an integral and

indispensable part of the principal activity the employees were

employed to perform; the court viewed the screenings as

necessary to the employees' primary work as warehouse employees

and for Integrity Staffing's benefit.28 The United States

Supreme Court reversed the federal court of appeals.

¶69 Applying federal regulations substantially similar to

those at issue here, the United States Supreme Court held that

"an activity is integral and indispensable to the principal

activities that an employee is employed to perform——and thus

compensable under the [Fair Labor Standards Act]——if it is an

intrinsic element of those activities and one with which the

employee cannot dispense if he is to perform his principal

activities."29 According to the Integrity Staffing Court,

because the employer-required screenings were not tied to the
productive work the employees were employed to perform——

retrieving and packing products——and the screenings could have

been eliminated without affecting the employees' ability to

perform their principal activity of retrieving and packaging

28
Integrity Staffing, 135 S. Ct. at 516.
29
Integrity Staffing, 135 S. Ct. at 519.

23
 No. 2014AP1880

products,30 the time spent waiting to undergo and undergoing

security screening was noncompensable.31

¶70 The reasoning in Integrity Staffing is not, as Hormel

argues, "squarely the opposite of the Court of Appeals'

reasoning in [Tyson Foods]." Rather, the reasoning in Integrity

Staffing is consistent with Tyson Foods. Nor is Integrity

Staffing inconsistent with prior federal precedent.32 Instead,

Integrity Staffing once again clarified that whether an activity

is integral and indispensable to an employee's principal

activities is answered by reference to the nature of the

employees' job duties. Simply put, the donning and doffing

cases are fact dependent.

¶71 Both Integrity Staffing and Tyson Foods support the

proposition that just because the employer requires employees to

perform an activity that benefits the employer does not

30
Integrity Staffing, 135 S. Ct. at 518.
31
Integrity Staffing, 135 S. Ct. at 519.
32
In Steiner v. Mitchell, 350 U.S. 247 (1956), the Court
held battery plant employees were entitled to compensation for
time spent showering and changing clothes because of the toxic
chemicals in the plant were "indispensable to the performance of
their productive work and integrally related thereto." Steiner,
350 U.S. at 249, 251. In a different case, the Court held that
meatpacker employees were entitled to compensation for time
spent sharpening their knives. See Mitchell v. King Packing
Co., 350 U.S. 260, 262-63 (1956). Conversely, in a third case,
the Supreme Court held the time spent waiting by poultry plant
employees to don protective equipment was noncompensable because
"such waiting . . . was two steps removed from the productive
activity on the assembly line . . . .'" IBP, Inc. v. Alvarez,
546 U.S. 21, 42 (2005) (emphasis added).

24
 No. 2014AP1880

automatically render that activity integral and indispensable to

an employee's principal work activities, and thus compensable.

See Integrity Staffing, 135 S. Ct. at 519; Tyson Foods, 350

Wis. 2d 380, ¶26. Both cases declare that an activity is

integral and indispensable to the principal activities if it is

an intrinsic element with which the employee cannot dispense if

he or she is to perform the employee's principal activities.33

Integrity Staffing does not contradict Tyson Foods; Tyson Foods

remains good law.

¶72 Another recent United States Supreme Court decision,

Sandifer v. United States Steel Corp., 134 S. Ct. 870 (2014),

discusses the issue of compensation for donning and doffing.

¶73 In Sandifer, employees were required to wear special

clothing and protective equipment and devices because of the

hazards at steel plants.34 The statutory provision interpreted

in Sandifer was 29 U.S.C. § 203(o).35 Section 203(o) provides

that the compensability of time spent "changing clothes or

washing at the beginning or end of each workday" is a subject

33
Integrity Staffing, 135 S. Ct. at 519 ("[A]n activity is
integral and indispensable to the principal activities . . . if
it is an intrinsic element . . . with which the employee cannot
dispense if he is to perform his principal activities."); Tyson
Foods, 350 Wis. 2d 380, ¶26 ("An integral part of a principal
activity includes . . . an activity that is . . . indispensable
to its performance.").
34
Sandifer, 134 S. Ct. at 874.
35
Sandifer, 134 S. Ct. at 874.

25
 No. 2014AP1880

appropriately committed to collective bargaining.36 U.S. Steel,

the defendant, contended that the provision in the collective

bargaining agreement rendering noncompensable the time spent

donning and doffing the special clothing and protective

equipment and devices was a valid provision under 29 U.S.C.

§ 203(o).37

¶74 According to the Sandifer Court, the exception for

collective bargaining agreements in 29 U.S.C. § 203(o) applies

only when "changing clothes" is "'an integral and indispensable

part of the principal activities for which covered workmen are

employed.'"38 U.S. Steel did not dispute the Seventh Circuit's

conclusion that were it not for 29 U.S.C. § 203(o) and the

collective bargaining agreement, the time spent donning and

doffing the special clothing and protective equipment and

devices would have been integral and indispensable to the

principal activities for which the employees were employed.39

Thus, the time would have been compensable.

¶75 Analyzing dictionary definitions of the statutory
terms "change" and "clothes," the Sandifer Court concluded the

time spent putting on and taking off the special clothing and

36
29 U.S.C. § 203(o) (emphasis added).
37
Sandifer, 134 S. Ct. at 874.
38
Sandifer, 134 S. Ct. at 877 (quoting Steiner v. Mitchell,
350 U.S. 247, 256 (1956)).
39
Sandifer, 134 S. Ct. at 876 (quoting Sandifer v. U.S.
Steel Corp., 678 F.3d 590, 596 (7th Cir. 2012)).

26
 No. 2014AP1880

protective equipment and devices was, on the whole, time spent

"changing clothes" under 29 U.S.C. § 203(o).40 As a result, the

time spent donning and doffing was not compensable under 29

U.S.C. § 203(o) and the collective bargaining agreement.41

¶76 No counterpart to 29 U.S.C. § 203(o) exists in

Wisconsin law. Although the clothing and protective equipment

and devices at issue in Sandifer were more specialized than

those at issue in the instant case, the Sandifer case supports

the conclusion that the clothing and equipment at issue in the

instant case is integral and indispensable to the employees'

principal work activities.

¶77 Moreover, although Hormel and the Union have entered

into a collective bargaining agreement, the agreement does not

speak to the compensability of time spent donning and doffing

the required clothing and equipment.

¶78 Applying Tyson Foods, Integrity Staffing, and

Sandifer, we conclude that donning and doffing the clothing and

equipment at the beginning and end of the day in the instant
case is "integral and indispensable" to the employees' principal

activities of producing food products. Accordingly, we affirm

the circuit court's judgment and order that the employees should

be compensated for the 5.7 minutes per day spent donning and

40
Sandifer, 134 S. Ct. at 876-79.
41
Sandifer, 134 S. Ct. at 879.

27
 No. 2014AP1880

doffing the required clothing and equipment at the beginning and

end of the day under Wis. Admin. Code § DWD 272.12.

IV
¶79 We next examine whether the time spent donning and

doffing Hormel's required clothing and equipment during meal

periods is considered compensable work time.

¶80 Hormel does not pay the employees for their 30-minute

meal period.

¶81 In the circuit court, the Union argued that the unpaid

meal periods were compensable under two regulations. First,

Wis. Admin. Code § DWD 272.12(2)(c), which applies to "[r]est

and meal periods." Second, Wis. Admin. Code § DWD 274.02(3),

which provides the test for when a meal period is "on-duty," and

thus counted as compensable work time.42

¶82 We will address the applicable regulations, Wis.

Admin. Code §§ DWD 272.12(2)(c) and 274.02(3), in turn.

¶83 First, Wis. Admin. Code § DWD 272.12(2)(c)2. provides

that "[b]ona fide meal periods of 30 minutes or more are not

42
Although the concurrence/dissent concludes that the
unpaid meal periods are not compensable, the concurrence/dissent
cites only one of these regulations, Wis. Admin. Code § DWD
274.02(3). See concurrence/dissent, ¶119 n.8. Instead, the
concurrence/dissent analyzes whether leaving the facility during
a meal period is a "principal activity" under Wis. Admin. Code
§ DWD 272.12(2)(e). See concurrence/dissent, ¶¶122-124.

The "principal activity" analysis under Wis. Admin. Code
§ DWD 272.12(2)(e) applies to "[p]reparatory and concluding
activities." Meal periods are not generally viewed as
"[p]reparatory and concluding activities."

28
 No. 2014AP1880

work time. . . . The employee must be completely relieved from

duty for the purposes of eating regular meals. . . . The

employee is not relieved if they are required to perform any

duties, whether active or inactive, while eating."

¶84 Second, Wis. Admin Code § DWD 274.02(3) states that

"[t]he employer shall pay all employees for on-duty meal

periods, which are to be counted as work time. An on-duty meal

period is a meal period where the employer does not provide at

least 30 minutes free from work. Any meal period where the

employee is not free to leave the premises of the employer will

also be considered an on-duty meal period."

¶85 The circuit court declared that the required donning

and doffing of clothing and equipment to leave the Hormel plant

during the 30-minute meal periods denied employees a bona fide

30-minute meal period in violation of Wisconsin law.

Nevertheless, the circuit court refused to award damages for

employees who remained on site during the meal period. The

circuit court did not adopt the Union's position that the
employees were to be reimbursed for the alleged lost 30-minute

meal break when the employees did not leave the premises but

simply sat in the lunch room for 30 minutes and ate their meal.

29
 No. 2014AP1880

The circuit court labeled the Union's contention far too broad

in its scope and found it was unsupported by credible evidence.43

¶86 As the circuit court acknowledged, "evidence about the

lunch period was sparse." The circuit court apparently agreed

with Hormel's position that even if liability were found for the

unpaid meal period, damages could be awarded only to the

employees who left the premises during the meals period. The

circuit court accepted the evidence that 1% of the employees

donned and doffed the clothing and equipment and left the

premises for meals. The parties stipulated that if the circuit

court accepted the 1% evidence, the damages on the unpaid meal

period claim would be $15,000.

¶87 The parties explained in the stipulation that the

stipulation was entered to limit the issues and expedite the

trial. Neither party took any opportunity at the circuit court

or thereafter to challenge the circuit court's $15,000 damage

award.

¶88 In this court, neither Hormel nor the Union made any
arguments specifically regarding the compensability of the

43
The Union argued that because Hormel's work rules
required the employees to don and doff their clothing and
equipment to leave the facility during their meal periods, the
vast majority of employees chose to remain on site during their
meal periods. The circuit court referred to this as the Union's
"chilling effect" argument, and concluded it was unsupported by
any credible evidence. If the circuit court had accepted the
Union's "chilling effect" argument, damages would have been
about $1.5 million.

30
 No. 2014AP1880

unpaid meal periods. They merely discussed the meal periods in

stating the background of the dispute.

¶89 Hormel's counsel never discussed the compensability of

the unpaid meal periods in his briefs to the court of appeals or

this court or in oral argument.

¶90 As the concurrence/dissent points out, the Union's

counsel did responded to several questions from the court at

oral argument regarding the compensability of unpaid meal

periods. However, the Union's counsel did not, as the

concurrence/dissent contends, "renew" any claim for compensation

for unpaid meal periods aside from defending the circuit court's

$15,000 damage award for the 1% of the employees who left the

premises for meals.44 As the excerpts of oral argument quoted in

the concurrence/dissent show, the Union's counsel was "not

asking for pay for the other 99%" of the employees.45

¶91 Instead, Hormel's and the Union's arguments to both

this court and the court of appeals addressed only the circuit

court's determination that 5.7 minutes spent per day donning
and doffing the required clothing and equipment is "integral and

indispensable" to the employees' principal work activities of

food production.

¶92 As explained previously, we affirm the circuit court's

conclusion that the 5.7 minutes spent per day donning and

44
See concurrence/dissent, ¶119.
45
Concurrence/dissent, ¶120.

31
 No. 2014AP1880

doffing the required clothing and equipment is integral and

indispensable to the employees' principal work activities.

¶93 We do not affirm the circuit court's declaration that

the required donning and doffing of clothing and equipment to

leave the Hormel plant during the 30-minute meal periods denied

employees a bona fide 30-minute meal period in violation of

Wisconsin law. We accept the $15,000 damage award because the

parties accepted it and have not disputed it in this court.46

¶94 The circuit court's awarding $15,000 based on the

parties' stipulation appears to be an attempt by the circuit

court and the parties to efficiently resolve this dispute

without a definitive ruling on the meal period. The parties

were trying to limit the issues and expedite the trial on the

issue of donning and doffing the Hormel-required clothing and

equipment at the beginning and end of the day. In the absence

of evidence and argument, we, like the circuit court, will not

disturb the $15,000 accommodation between the parties.
V
¶95 Having determined that the donning and doffing at the

beginning and end of the day is integral and indispensable to

the employees' principal activities in producing food products,

we next address whether this time is non-compensable under the

46
See Maurin v. Hall, 2004 WI 100, ¶120, 274 Wis. 2d 28,
682 N.W.2d 866 (Abrahamson, C.J., & Crooks, J., concurring)
("The rule of law is generally best developed when matters are
tested by the fire of adversarial briefs and oral argument),
overruled on other grounds by Bartholomew v. Wis. Patients Comp.
Fund, 2006 WI 91, 293 Wis. 2d 38, 717 N.W.2d 216

32
 No. 2014AP1880

doctrine of de minimis non curat lex (the law does not concern

itself with trifles).

¶96 The circuit court and Hormel viewed Hormel as having

the burden of proof on the issue of the de minimis non curat lex

doctrine. The circuit court determined that "Hormel has failed

to carry its burden to show the applicability of the de minimis

doctrine, and, therefore, that doctrine is not controlling

(assuming it exists at all in Wisconsin law)."

¶97 The de minimis non curat lex doctrine "permits

employers to disregard . . . otherwise compensable work '[w]hen

the matter in issue concerns only a few seconds or minutes of

work beyond the scheduled working hours.'" Singh v. City of New

York, 524 F.3d 361, 370 (2d Cir. 2008) (quoting Anderson v. Mt.

Clemens Pottery Co., 328 U.S. 680, 692 (1946)).47

¶98 Assuming, without deciding, that the de minimis

doctrine is applicable to claims under Wis. Admin. Code § DWD

272.12, we conclude that in the instant case, the de minimis

doctrine does not bar compensation for the time spent donning
and doffing the required clothing and equipment because the time

spent donning and doffing is not a "trifle."

47
The Sandifer court remarked (in the context of 29 U.S.C.
§ 209(o)) 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
clothing needed for their jobs." Sandifer, 134 S. Ct. at 880.

33
 No. 2014AP1880

¶99 Although the de minimis non curat lex doctrine is an

established feature of the Federal Fair Labor Standards Act,48 no

Wisconsin cases, statutes, or regulations state that the de

minimis doctrine applies to Wisconsin DWD regulations or in

employment disputes. Wisconsin courts have, however, applied

the doctrine in other unrelated contexts. See, e.g., Town of

Delevan v. City of Delevan, 176 Wis. 2d 516, 532, 500 N.W.2d 268

(1993) (annexation); Waupaca Cnty. v. Bax, No. 2009AP1406,

unpublished slip op. (Wis. Ct. App. Jan. 28, 2010) (zoning).

¶100 Despite the lack of Wisconsin case law or state

statutory guidance with regard to the de minimis doctrine in the

instant case, a review of federal case law assists in reaching

our conclusions.

¶101 As Hormel noted, the United States Supreme Court first

applied the maxim of de minimis non curat lex as a possible

defense to disputes originating under the Federal Labor

Standards Act in Anderson v. Mt. Clemens Pottery Co., 328 U.S.

680 (1946). The United States Supreme Court stated that
overtime compensation that concerns "only a few seconds or

minutes of work" may be disregarded as de minimis, reasoning

that "[s]plit-second absurdities are not justified by the

actualities of working conditions or by the policy of the Fair

Labor Standards Act." Anderson, 328 U.S. at 692. The de

minimis doctrine appears in the federal regulations. See 29

48
Tyson Foods, 350 Wis. 2d 380, ¶51.

34
 No. 2014AP1880

C.F.R. § 785.47. In contrast to federal law, the de minimis

doctrine has no explicit basis in the Wisconsin statutes or

Wisconsin regulations in the instant case.

¶102 In the instant case, employees spend approximately 24

hours per year donning and doffing. Viewed in light of the

employees' hourly rate of $22 per hour, the unpaid period in

question may amount to over $500 per year for each employee and

substantial sums for Hormel. We agree with the circuit court

that in the instant case this time is not a "trifle."

¶103 Hormel's primary reliance on Mitchell v. JCG

Industries, Inc., 745 F.3d 837 (7th Cir. 2014), is misplaced.

In Mitchell, the Seventh Circuit held the de minimis doctrine

applicable to donning and doffing during a meal break.

Mitchell, 745 F.3d at 841-42. After discussing the parties'

disagreement regarding the amount of time spent donning and

doffing equipment, the federal court of appeals quoted the

Supreme Court in Sandifer v. U.S. Steel Corp., 134 S. Ct. 870,

881 (2014), that "it is most unlikely Congress meant § 203(o) to
convert federal judges into time-study professionals."

Mitchell, 745 F.3d at 843 (quoting Sandifer, 134 S. Ct. at 881).

Thus, the Seventh Circuit held that under the de minimis

doctrine, it was better to leave to collective bargaining,

rather than judicial determination, the issue of how much time

was spent donning and doffing equipment on different days.

Mitchell, 745 F.3d at 843.

¶104 Here, Hormel and the Union stipulated to the donning
and doffing period in question at the beginning and end of the
35
 No. 2014AP1880

day: 5.7 minutes per day, 28.5 minutes per week, approximately

24 hours per year. As a result, in the instant case the court

need not be a "time-study professional" to determine the time

spent donning and doffing the clothing and equipment.

¶105 Assuming, without deciding, that the de minimis

doctrine applies to claims arising under Wis. Admin. Code § DWD

272.12, the de minimis doctrine does not bar compensation for

the time spent donning and doffing the required clothing and

equipment at the beginning and end of the day because the time

spent donning and doffing is not a "trifle." The donning and

doffing of the clothing and equipment at the beginning and end

of the day is integral and indispensable to the employees'

principal activity——to successfully and sanitarily produce

Hormel's products. Viewed in the aggregate, this time amounts

to over $500 per year for each employee, a figure that is

certainly significant to an employee and to Hormel.

Accordingly, we conclude that the period spent donning and

doffing at the beginning and end of the day is compensable under
Wis. Admin. Code § DWD 272.12 and affirm the judgment and order

of the circuit court.

¶106 For the reasons set forth, we conclude:

(1) Wisconsin Admin. Code § DWD 272.12 requires

Hormel to compensate its employees for the 5.7

minutes per day spent donning and doffing the

clothing and equipment at the beginning and end

of the day. Relying on Tyson Foods, 350 Wis. 2d
380, as did the circuit court, we conclude, as
36
 No. 2014AP1880

did the circuit court, that the employees'

donning and doffing clothing and equipment at the

beginning and end of the day brought Hormel into

compliance with federal food and safety

regulations and was integral to sanitation and

safety in the employees' principal activities,

namely food production.

(2) The required donning and doffing of clothing and

equipment at the beginning and end of the day

does not fall within the doctrine of de minimis

non curat lex. The wages involved are not a

"trifle" either for the employees or Hormel.

By the Court.-The judgment and order of the circuit court

is affirmed.

¶107 REBECCA G. BRADLEY, J., did not participate.

37
 No. 2014AP1880.pdr

¶108 PATIENCE DRAKE ROGGENSACK, C.J. (concurring in part,

dissenting in part). While I do not join the lead opinion,1 I

agree with its conclusion that donning and doffing of company-

required clothing and gear at the beginning and end of the

workday is "an integral part of a principal activity" of Hormel

Foods Corporation for which compensation is required.2 I also

agree that under the facts of this case Hormel is not relieved

of its obligation to compensate for 5.7 minutes per day for

those tasks by the de minimis rule.3

¶109 I dissent from the lead opinion because I conclude

that Hormel is not required to further compensate its employees

due to doffing and donning by employees who choose to leave the

workplace for lunch. Leaving during the lunch break serves no

interest of Hormel, is not "an integral part of a principal

activity" of the employer within the meaning of Wis. Admin. Code

§ DWD 272.12(2)(e)1. (2009), and serves only employees'

interests. I also dissent because I would cabin the time for

which compensation is due each employee at 5.7 minutes per
workday. That is the total time presented to us as a

stipulation by the parties for an employee to accomplish donning

and doffing at the beginning and end of a workday. If the time

allocated for donning and doffing were not cabined at a

1
The lead opinion represents the decision of two justices:
Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley.
2
Lead op., ¶7.
3
Id. at ¶8.

1
 No. 2014AP1880.pdr

specified number of minutes per employee per workday, the de

minimis rule would preclude compensation because keeping

accurate payroll records of the varying time that each employee

spends donning and doffing on each workday would appear to be a

nearly impossible administrative task for Hormel. Cabining the

time at a specified number of minutes per employee per workday

for which compensation is due was the mode employed in prior

contracts between Hormel and the Union for those tasks.

Accordingly, I respectfully concur in part and dissent in part

from the lead opinion.

I. BACKGROUND

¶110 The lead opinion ably sets out facts as presented by

the parties, who do not dispute what occurred on a factual

basis. I repeat only a few facts here to draw the reader into

the discussion that follows.

¶111 This is a wage and hour claim against Hormel, whose

business is food production. Hormel's Beloit plant has

assembly-line food preparation where raw materials enter the
facility and move through a production-line process where meat,

seasonings and other ingredients are ground, chopped and

prepared for cooking and canning. During part of the food

preparation, product ingredients are in open containers as

employees work to prepare and cook various raw materials. The

production process of food products ends when high temperature,

heavy pressure canning occurs.

¶112 The claim here arises because Hormel requires
employees to wear Hormel-provided clothing, "whites," and

2
 No. 2014AP1880.pdr

protective gear, such as glasses, hair and beard nets, and hard

hats, while working and to remove the whites and gear before

they leave Hormel's facility.4 When employees choose to leave

Hormel's facility during the 30-minute lunch break, they are

required to doff their whites and gear and to don them again

before they return to food preparation.

¶113 Hormel is not currently compensating employees for

donning and doffing. However, in an earlier union contract,

Hormel compensated employees 12 minutes per day for these tasks.5

During subsequent contract negotiations, the Union bargained

away this compensation provision.6

¶114 The parties stipulated that 5.7 minutes is the total

average time per day an employee requires to don and doff whites

and gear at the beginning and end of the workday. The questions

presented to us are four-fold: (1) whether donning and doffing

of clothing and gear that Hormel requires employees to put on at

the start of the workday and remove before they leave the

workplace is time worked for which compensation is due under

4
For convenience, I refer to the clothing provided by
Hormel as "whites," even though some employees are required to
wear clothing that is blue in color.
5
The record reflects that in the 1980s employees were
compensated 12 minutes per day for donning and doffing under the
then union contract.
6
Hormel does not argue that no compensation is due because
such compensation was bargained away in a collective bargaining
agreement, which is permitted under state and federal law. See
Aguilar v. Husco Int'l, Inc., 2015 WI 36, ¶24, 361 Wis. 2d 597,
863 N.W.2d 556; Wis. Admin. Code § DWD 274.05; see also Sandifer
v. United States Steel Corp., 134 S. Ct. 870, 878-79 (2014).

3
 No. 2014AP1880.pdr

Wisconsin law; (2) whether doffing and donning of clothing and

equipment that occurs when employees choose to leave during the

30-minute lunch break is time worked for which compensation is

due under Wisconsin law; (3) whether Hormel is relieved from

compensating its employees for donning and doffing by the de

minimis rule; and (4) if the de minimis rule does not apply,

what is the amount of time for which compensation is due for

past, and will be due for future, donning and doffing.

II. DISCUSSION

A. Standard of Review

¶115 To decide the questions presented, we must interpret

Wisconsin Administrative Code provisions, most specifically,

Wis. Admin. Code § DWD 272.12(2)(e)1., as it drives the

determination of "hours worked" by Hormel employees. In that

regard, whether donning and doffing are "an integral part of a

principal activity" of the employer within the meaning of § DWD

272.12(2)(e)1. is a question of law that we review

independently. DaimlerChrysler v. LIRC, 2007 WI 15, ¶10, 299
Wis. 2d 1, 727 N.W.2d 311.

¶116 If Wis. Admin. Code § DWD 272.12(2)(e)1. applies to

donning and doffing, whether the de minimis rule nevertheless

precludes Hormel employees' recovery for otherwise compensable

time is also a question of law for our independent review.

Lindow v. United States, 738 F.2d 1057, 1062 (9th Cir. 1984).

4
 No. 2014AP1880.pdr

B. Section DWD 272.12(2)(e)1.

1. Beginning and end of workday

¶117 If donning and doffing come within Wis. Admin. Code

§ DWD 272.12(2)(e)1., those tasks are part of the hours worked

for which compensation is due because they are part of the

"Workday." § DWD 272.12(1)(a)2. I agree with the lead

opinion's conclusion that § DWD 272.12(2)(e)1. requires Hormel

to compensate its employees for 5.7 minutes per day that have

been cabined for donning and doffing clothing and equipment at

the beginning and end of the workday.7 I agree because a

principal activity of Hormel is sanitary food production and

Hormel's requirement that employees wear clean whites, hair

nets, beard nets and other equipment designed to keep foreign

objects out of the food is an integral part of the production of

sanitary food. See § DWD 272.12(2)(e)1.c. As the court of

appeals correctly reasoned in regard to Weissman's claim for

donning required clothing and gear at the start of the workday

and doffing at day's conclusion, "donning and doffing here
constitute 'preparatory and concluding' activities that are 'an

integral part of a principal activity'" of the employer, again

sanitary food production. Weissman v. Tyson Prepared Foods,

Inc., 2013 WI App 109, ¶2, 350 Wis. 2d 380, 838 N.W.2d 502.

2. Lunch break

¶118 The circuit court granted compensation for doffing and

donning clothing and gear for those employees who chose to leave

7
See lead op., ¶7.

5
 No. 2014AP1880.pdr

Hormel's facility during their lunch break. The Union had asked

for 30 minutes of additional compensation because it claimed

that doffing and donning in order to leave the workplace during

lunch break caused the break to be less than 30 minutes long and

therefore compensation for the full 30 minutes was due.

¶119 Before us, the Union renews its claim that

compensation is due for an additional 30 minutes because the

time required for doffing and donning that occurs when employees

choose to leave the workplace reduces the lunch break to less

than 30 minutes, the minimum time required for an unpaid break.8

The lead opinion affirms the circuit court, and ducks the

question presented about the compensability of the doffing and

donning during the lunch break by asserting, "neither Hormel nor

the Union made any arguments specifically regarding the

compensability of the unpaid meal periods."9

¶120 The lead opinion minimizes what occurred at oral

argument before us. For example, the following questions were

asked and answered:

CHIEF JUSTICE ROGGENSACK: Part of your brief was
people wanting to leave the workplace for 30 minutes,
and in order to do so they have to take off the
clothes that they're required to put on when they go
out to lunch and put them back on again when they come
in from lunch, correct?

UNION COUNSEL: Yes.

8
See Wis. Admin. Code § DWD 274.02(3) (2013).
9
Lead op., ¶88.

6
 No. 2014AP1880.pdr

CHIEF JUSTICE ROGGENSACK: Are you asking for
compensation for that in addition to the beginning of
the workday and the end of the workday for anybody who
leaves the place of employment?

UNION COUNSEL: Well the trial court looked at that
and the regulations again are clear. That if there is
not a 30 minute uninterrupted break, it has to be paid
for. So the issue is, since people are required to don
before they leave the plant and doff before they, when
they come back, they are actually getting less than a
30-minute lunch.

CHIEF JUSTICE ROGGENSACK: Okay so the answer to my
question is "yes?"

UNION COUNSEL: They should be paid for the lunchtime.
And the court found that approximately 1% of the
workers do that. So we're not asking for pay for the
other 99%.

. . . .

JUSTICE A.W. BRADLEY: I'm focusing on the lunch hour,
the 30 minutes. Our opinions have to make sense
. . . . This doesn't make sense to me. If we would
agree with the trial court that the donning and
doffing for some employees who do this over the 30-
minute lunch hour should be compensable, what, doesn't
that provide an incentive for . . . more, maybe all of
the employees to say "oh let's get time and a half,
let's put on and take off over the 30-minute lunch
hour?" That doesn't make sense to me. It sounds like
it will be giving a rather perverse incentive. Now,
so tell me why it does make sense. Tell me why, since
it only affects a few, according to the record, a few
employees, that shouldn't be considered de minimis. So
you've got two questions there.

UNION COUNSEL: Well, again, it's only if, just
factually, if you're leaving the plant that you're
entitled to that pay. [Justice A.W. Bradley
interjects]. I think the exact same test is being
applied. So, if you find that donning and doffing the
clothes is compensable in the morning and in the
afternoon where employers are required because it is
integral and indispensable, the exact same argument
makes exact same sense because of the regulation that
requires a bona fide meal period of 30 minutes. So

7
 No. 2014AP1880.pdr

Hormel would be required to allow employees to take a
full 30-minute lunch, which includes being able to don
first, then leave the plant, then come back 30 minutes
later, and then——or doff first——and then don on the
way back in.

JUSTICE A.W. BRADLEY: So you're not really responding
to my concern about the potential for gaming the law?

UNION COUNSEL: I don't see how it's gaming because
the legislature has said that the Department of
Workforce Development has to pass these regulations,
and they have. They've said that everyone is entitled
to a 30-minute bona fide meal period.

. . . .

JUSTICE ABRAHAMSON: Does the 5.7 minutes include the
initial putting them on and the final taking them off
and the lunch hour donning and doffing?

UNION COUNSEL: No.

JUSTICE ABRAHAMSON: So it only deals with putting
them on to begin with and taking them off, right?

UNION COUNSEL: Right.

JUSTICE ABRAHAMSON: But the trial court order says
. . . that the class members have been denied the
right to 30 minutes off duty to leave the premises and
the doffing and donning clothes and gear during such
30 minutes violates the class members. So the
declaratory judgment is that's a violation.

UNION COUNSEL: Right . . . yes.
¶121 I conclude the reasoning that supports the conclusion

that donning and doffing at the beginning and end of the workday

are "an integral part of a principal activity" of Hormel and

therefore require compensation does not support compensation for

doffing and donning when employees choose to leave Hormel's

facility during their lunch break, nor does it support 30
minutes more pay because time required to doff and don reduces

the lunch break below 30 minutes.
8
 No. 2014AP1880.pdr

¶122 First, no interest or activity of Hormel is served by

employees leaving its facility during lunch break. Stated

otherwise, leaving Hormel's facility at lunch does not aid in

sanitary food production, which is a principal activity of

Hormel. Second, the choice to leave Hormel's facility at lunch

is totally each individual employee's choice, not Hormel's.

¶123 Wisconsin Admin. Code § DWD 272.12(2)(e)1. is directed

at "a principal activity" of the employer, Hormel. It is § DWD

272.12(2)(e)1. that drives the obligation to compensate

employees for the initial donning and final doffing of whites

and gear. Section DWD 272.12(2)(e)1. is not directed at

principal activities of employees. However, leaving the

workplace during lunch break is driven by principal activities

of employees, i.e., employees choose to leave to further their

own interests. Furthermore, approximately 1% of employees

choose to leave during lunch break. With 99% of employees not

undertaking an activity, that activity cannot reasonably be

contended to constitute a "principal activity" of the employer.
Instead, the 1% of employees is furthering their own principal

activity, i.e., their choice to leave for lunch. Section DWD

272.12(2)(e)1. does not require compensation for principal

activities of employees.

¶124 And finally, while employees are free to leave the

workplace during lunch break, it is their personal and voluntary

choice that causes them to leave Hormel's facility. Their

leaving serves no interest of Hormel. Accordingly, I conclude
that Hormel is not required to compensate employees who leave

9
 No. 2014AP1880.pdr

the workplace for their entire lunch break, as the Union

requests, or for a portion thereof, as the circuit court

ordered. Therefore, I would reverse the order of the circuit

court in regard to payment for lunchtime doffing and donning,

which order the lead opinion does not overturn.10

C. De Minimis Rule

¶125 Hormel contends that all donning and doffing should

fall outside of its obligation to provide compensation because

of the de minimis rule. The lead opinion concludes that donning

and doffing at the beginning and end of the workday are not de

minimis, assuming that the de minimis rule may be applied to the

Union's claims.11 The lead opinion does not discuss whether the

de minimis rule may be applied to doffing and donning by those

employees who choose to leave during their lunch break.

¶126 The United States Supreme Court discussed application

of the de minimis rule in regard to a federal wage and hour

claim in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680

(1946). There, the Court said that work "pursued necessarily
and primarily for the benefit of the employer and his business"

and rightly included in "the statutory workweek" may

nevertheless go without payment if it is de minimis. Id. at

691-92 (citation omitted).

10
Because four justices, Chief Justice Roggensack, Justice
Prosser, Justice Ziegler and Justice Gableman, conclude that no
compensation is due for doffing and donning during lunch break,
the order of the circuit court is reversed in regard to the
$15,000 payment that the circuit court ordered.
11
Id., ¶¶8, 98.

10
 No. 2014AP1880.pdr

¶127 To determine whether the de minimis rule applies in a

particular context, one must consider whether the factual

predicates for the rule's application are met. In Lindow, the

Ninth Circuit Court of Appeals carefully explained a test that

it applied when considering whether compensation is excused that

otherwise would be due because the work is de minimis. There,

employees of the Army Corps of Engineers (Corps) sought overtime

compensation for the Corps' requirement that they report to work

15 minutes before the start of their scheduled shifts to perform

certain tasks that took part of the required 15 minutes.

Lindow, 738 F.2d at 1059.

¶128 Lindow explained that the "de minimis rule is

concerned with the practical administrative difficulty of

recording small amounts of time for payroll purposes." Id. at

1062. The court reasoned that keeping accurate track of

varying, small amounts of time for many employees could be an

overwhelming task for employers. Id. at 1063 (citing Veech &

Moon, De Minimis Non Curat Lex, 45 Mich. L. Rev. 537, 551 (1947)
and its conclusion that Anderson was concerned with "just plain

everyday practicality").

¶129 Lindow also explained that an "important factor in

determining whether a claim is de minimis is the amount of daily

time spent on the additional work[,] . . . [although n]o rigid

rule can be applied with mathematical certainty." Id. at 1062

(citing Frank v. Wilson & Co., 172 F.2d 712, 716 (7th Cir. 1949)

and Nardone v. Gen. Motors, Inc., 207 F. Supp. 336, 341 (D.N.J.
1962)). Further, the court considered the "size of the

11
 No. 2014AP1880.pdr

aggregate claim" for those claims where time expended may have

been minimal on a daily basis. Id. at 1063. And finally,

Lindow noted that "in applying the de minimis rule, we will

consider whether the claimants performed the work on a regular

basis." Id. (citing Smith v. Cleveland Pneumatic Tool, Co., 173

F.2d 775, 776 (6th Cir. 1949), as applying de minimis rule where

unpaid work did not occur on a daily basis).

¶130 I adopt and apply the Lindow test, summarizing it as

follows: (1) the time at issue must be otherwise compensable by

the employer and (2) consideration must be given to (a) the

practical, administrative difficulty of accurately recording

small amounts of additional time that may vary from employee to

employee, (b) the regularity on which additional work is

performed, (c) the time spent each day on additional work, and

(d) the size of the aggregate claim for additional compensation.

Id. at 1062-63.

¶131 In the case now before us, unless the de minimis rule

applies, the cabined 5.7 minutes per day for donning whites and
required gear at the beginning of the workday and doffing at the

end of the workday is compensable because it is integral to a

principal activity of Hormel. Weissman, 350 Wis. 2d 380, ¶2.

However, because doffing and donning by those employees who

choose to leave during lunch break is not compensable, the de

minimis rule has no application there. Anderson, 328 U.S. at

691-92; Lindow, 738 F.2d at 1063.

¶132 As I apply the Lindow test to determine whether the de
minimis rule eliminates Hormel's obligation for compensation of

12
 No. 2014AP1880.pdr

the stipulated total time of 5.7 minutes per day for donning at

the beginning of the workday and doffing at the end of the

workday, I note that if Hormel were required to record for

payroll purposes the varying amounts of time that each

individual employee expends to don and doff at the beginning and

end of each workday, it would appear to be almost an

administrative impossibility to do so accurately. Furthermore,

imposing such an obligation on Hormel could lead to an unending

series of wage and hour claims by employees who contend that

Hormel did not record the correct amount of time on particular

days for particular employees. Stated otherwise, if the total

time per day that is due for donning and doffing were not

cabined at a stipulated amount, all donning and doffing would be

precluded by the de minimis rule.

¶133 Other courts have used the de minimis rule to

eliminate otherwise compensable time that was too burdensome to

record accurately. See Mitchell v. JCG Indus., Inc., 745 F.3d

837, 843 (7th Cir. 2014) (precluding an obligation to record
small, varying amounts of time for payroll purposes in part

because it would turn judges into "time-study professionals"

when complaints about accuracy of recording were made).

¶134 However, as the claim is presented to us, the Union

and Hormel have cabined the total time taken to don and doff at

the beginning and end of a workday at 5.7 minutes per employee.

In addition, the Union has not requested that we impose an

obligation on Hormel to record for payroll purposes the actual
time spent by each employee on each day.

13
 No. 2014AP1880.pdr

¶135 The Union's approach of seeking recovery for an agreed

amount of compensable time on a daily basis is consistent with

the approach the Union took when donning and doffing were

accorded in collective bargaining.12 It also frees Hormel from

what would be a near administrative impossibility to do

accurately.

¶136 I note that the tasks for which compensation is

required occur on a daily basis for each employee engaged in

food preparation. In addition, although 5.7 minutes per day is

a small amount of time, because it is expended every day, the

aggregate amount of each employee's claim per year is $500,

which is significant. It is also significant to Hormel as an

aggregate amount for all food preparation employees.

¶137 Accordingly, I conclude that in the context presented

by the case at hand, the de minimis rule does not apply to

preclude compensation for 5.7 minutes per day for each food

preparation employee who dons whites and required gear at the

start of the workday and doffs them at the day's conclusion.
D. Cabining Time Allotted

¶138 If the lead opinion were construed as leaving the

amount of donning and doffing time open to adjustment for future

work days, I could not concur with the lead opinion in any

respect. This is so because without cabining the time at a

specified number of minutes per employee per day for which

compensation is due, the entire claim would be precluded by the

12
See note 5, supra.

14
 No. 2014AP1880.pdr

near impossibility of Hormel's accurately recording small,

varying amounts of time for payroll purposes for each employee.

However, with compensable time cabined at a stipulated amount,

Hormel knows what compensation is due for past work. Hormel

also can choose to compensate through shortening future workdays

by 5.7 minutes so that it is not put in the position of

exceeding a 40-hour work week in the future. Accordingly,

cabining the time allotted for which compensation is due is

necessary to my decision to agree with the lead opinion in part.

III. CONCLUSION

¶139 While I do not join the lead opinion, I agree with its

conclusion that donning and doffing of company-required clothing

and gear at the beginning and end of the workday is "an integral

part of a principal activity" of Hormel for which compensation

is required. I also agree that under the facts of this case

Hormel is not relieved of its obligation to compensate for 5.7

minutes per day for those tasks by the de minimis rule.

¶140 I dissent from the lead opinion because I conclude
that Hormel is not required to further compensate its employees

due to doffing and donning by employees who choose to leave the

workplace for lunch. Leaving during the lunch break serves no

interest of Hormel, is not "an integral part of a principal

activity" of the employer within the meaning of Wis. Admin. Code

§ DWD 272.12(2)(e)1 and serves only employees' interests. I

also dissent because I would cabin the time for which

compensation is due each employee at 5.7 minutes per workday.
That is the total time presented to us as a stipulation by the

15
 No. 2014AP1880.pdr

parties for an employee to accomplish donning and doffing at the

beginning and end of a workday. If the time allocated for

donning and doffing were not cabined at a specified number of

minutes per employee per workday, the de minimis rule would

preclude compensation because keeping accurate records of the

varying time that each employee spends donning and doffing on

each workday would be a nearly impossible administrative task

for Hormel. Cabining the time at a specified number of minutes

per employee per workday for which compensation is due was the

mode employed in prior contracts between Hormel and the Union

for those tasks. Accordingly, I respectfully concur in part and

dissent in part from the lead opinion.

¶141 I am authorized to state that Justice DAVID T.

PROSSER, JR. joins this opinion.

16
 No. 2014AP1880.mjg

¶142 MICHAEL J. GABLEMAN, J. (dissenting). I agree with

the lead opinion's and the concurring/dissenting opinion's

conclusion that Weissman v. Tyson Foods, Inc., 2013 WI App 109,

350 Wis. 2d 380, 838 N.W.2d 502, review granted, 2014 WI 3, 352

Wis. 2d 351, 842 N.W.2d 359, need not be overruled. However, I

do not agree with the lead opinion's and the

concurring/dissenting opinion's conclusion that Hormel must

compensate its employees for the time they spend "donning and

doffing" company-required "whites" at the Beloit cannery. Unlike

a majority of this court, I conclude that the "donning and

doffing" of the "whites" in this case is not "integral and

indispensable" to the employees' principal work activity of

canning food.

¶143 Because an "integral and indispensable" analysis is

context-specific, I begin by laying out the facts of the present

case.1 I then take up the two issues before this court: (1) is

1
This dissent often quotes information contained in the
record. The information quoted is largely derived from trial
testimony and the circuit court's opinion and order. Below is a
list of individuals who testified at trial:

Scott A. Ramlo: Plant Manager at the Beloit cannery.

Pamela Collins: Quality Control, Weight, and Seam
Technician at the Beloit cannery.

Charles Seeley: Production Specialist at the Beloit
cannery.

Dennis Warne: Stork Operator at the Beloit cannery.

Resha Hovde: Corporate Manager of Regulatory
Compliance and HAACP. HAACP stands for "hazard
analysis critical control point."

(continued)
1
 No. 2014AP1880.mjg

the "donning and doffing" of company-required "whites"

compensable work time or non-compensable preliminary and

postliminary activities under Wis. Admin. Code. § DWD

272.12(2)(e); and (2) if the time spent "donning and doffing" is

otherwise compensable work time, is this time non-compensable

under the doctrine of de minimis non curat lex?

I. FACTUAL BACKGROUND

¶144 Hormel Foods Corporation ("Hormel") is a multi-

national company specializing in food production. All the

parties and the lead opinion agree that "Hormel is a fine

employer with a quality record and a history of producing good,

safe food for customers around the world." Lead op., ¶12.

¶145 Hormel has a variety of food producing plants located

in different states. At every one of these plants, and without

regard to what is being produced, Hormel requires its employees

to "don and doff" either "whites" or "blues." Most employees

wear "whites," but the maintenance department wears "blues."

Every day Hormel employees "don and doff" hardhats, hearing
protection, eye protection, hair nets, shoes,2 and clean clothes.

I use the term "whites" to refer to all of the above described

items. Depending on the nature of the job, some employees "don

and doff" additional clothing and gear on top of their "whites."

Currently, Hormel's employees are not paid for the time it takes

Francisco Velaquez: Human Resource and Safety Manager
at the Beloit cannery.
2
Employees wear "captive" or "dedicated" shoes. Captive
shoes are shoes that are left at the facility overnight.

2
 No. 2014AP1880.mjg

to "don and doff" the "whites."3 "Donning and doffing" the

"whites" takes, at the median, 2.903 minutes per day. More

specifically, "donning" the "whites" takes, at the median, 2

minutes, 3.84 seconds (or 2.064 minutes),4 and "doffing" the

3
The concurring/dissenting opinion correctly notes that in
the 1980's Hormel compensated its employees 12 minutes per day
for "donning and doffing" under a then-existing collective
bargaining agreement ("CBA"). Concurrence/Dissent, ¶113.
Eventually the compensation Hormel's employees received for
"donning and doffing" was "bargained away." Id., ¶113 n.6.

The Wisconsin Administrative Code allows employees to
bargain away rights they would otherwise have under the Code as
long as the parties enter into a CBA agreement and apply for a
waiver or otherwise meet the factors required for a waiver. See
Wis. Admin. Code § DWD 247.05; Aguilar v. Husco Int'l, Inc.,
2015 WI 36, ¶11, 361 Wis. 2d 597, 863 N.W.2d 556 ("[E]ven though
the 20-minute unpaid breaks were technically violations of the
code, it would be unreasonable to grant back pay because the
breaks had posed no health or safety concerns, the statute
permits waivers in circumstances such as these, and the
employees had enjoyed other benefits in exchange for . . . the
short unpaid meal periods.")

But, as the concurring/dissenting opinion points out,
"Hormel does not argue that no compensation is due because such
compensation was bargained away in a collective bargaining
agreement, which is permitted under state and federal law."
Concurrence/Dissent, ¶113 n.6.
4
"Donning" a belt takes 16.740 seconds, "donning" ear plugs
takes 6.960 seconds, "donning" a hair net takes 9.780 seconds,
"donning" a hard hat takes 5.940 seconds, "donning" captive
shoes takes 26.280 seconds, "donning" safety glasses takes 5.400
seconds, "donning" uniform pants takes 19.320 seconds, and
"donning" a uniform shirt takes 18.780 seconds.

3
 No. 2014AP1880.mjg

"whites" takes, at the median, 50.34 seconds (or .839 minutes).5

"Donning and doffing" the "whites," washing hands,6 and walking

to an assigned work station takes,7 at the median, 5.7 minutes

per day.8

¶146 This case concerns only Hormel's Beloit cannery. The

Beloit cannery employs approximately 290 people for various

types of work ranging from quality control technician to

forklift driver to sanitation crew member. The record reflects

that only half of Hormel's employees at the Beloit cannery work

near open product. Additionally, only half of the Beloit cannery

has open product in it.

¶147 As a cannery, the Beloit facility is mainly tasked

with preparing, canning, and shipping "shelf-stable" canned

5
"Doffing" a belt takes 3.720 seconds, "doffing" ear plugs
takes 1.980 seconds, "doffing" a hair net takes 4.860 seconds,
"doffing" a hard hat takes 4.440 seconds, "doffing" captive
shoes takes 14.640 seconds, "doffing" safety glasses takes 3.480
seconds, "doffing" uniform pants takes 10.800 seconds, and
"doffing" a uniform shirt takes 6.420 seconds.
6
Washing hands takes 14.640 seconds.
7
The time it takes to walk to and from an employee's
workstation varies depending on the location of the workstation.
The shortest walk time to a workstation takes 27.66 seconds, and
the shortest walk time from a workstation takes 26.16 seconds
(for a total of 53.82 seconds per day). The longest walk time to
a workstation takes 2 minutes, 19.56 seconds, and the longest
walk time from a workstation takes 1 minute, 31.74 seconds (for
a total of 3 minutes, 51.3 seconds per day).
8
Attached to this dissent are time tables contained in the
record. The tables show how long it takes to "don" and "doff"
various items, to wash hands, and to walk to assigned
workstations.

4
 No. 2014AP1880.mjg

goods, including items such as Hormel Chili, Mary Kitchen Hash,

and Chi-Chi's Salsa. This process is largely assembly like:

outside suppliers deliver raw product in a receiving area; the

product is cooked; the cooked product is placed into a can or

glass container; and the canned product is sent through a final

heating process. It is this final heating process, called "12-D

cook" for canned products or "acidification" for glass products,

that renders the product shelf-stable.

¶148 The 12-D cook and acidification processes are quite

technical. For example, Resha Hovde, Hormel's corporate manager

of regulatory compliance and HACCP, testified that Hormel's 12-D

cook process

provides a thermal destruction of organisms, of a
trillion organisms. It's 12 to the 10th power. So if
you could imagine a trillion organisms, and whatever
product it is, it would destroy all the vegetative
organisms . . . . So through time, an extensive amount
of time at a high temperature, we're able to eliminate
those organisms of concern.
In short, the 12-D cook and acidification processes "destroy any

organisms of concern" such that any organism in the can or glass
container "certainly wouldn't be a food safety issue."9 No

9
The following trial testimony emphasizes just how powerful
the 12-D cook and acidification processes are:

Q. Ms. Hovde, yesterday there was a hypothetical
example that was posed to Mr. Ramlo, the plant manager
at the Beloit facility, and it was regarding a world
in which Hormel allows street clothes in the Beloit
facility and doesn't require whites. Now in that
world, according to the hypothetical, an avid
fisherman who works at the Beloit facility would
report to work with fish scales on his clothing and
worms in his pockets. Based on the 12-D cook process
(continued)
5
 No. 2014AP1880.mjg

employees come into contact with open product after the 12-D

cook or acidification processes. The next time the product would

come into contact with someone would be when a consumer opens

the can.

¶149 As noted by the lead opinion, Hormel is subject to

federal regulation by the United States Department of

Agriculture (USDA), the United States Food and Drug

Administration (FDA), and the federal Occupational Safety and

Health Administration (OSHA). These regulations ensure that

Hormel satisfies cleanliness, quality, and safety standards;

however, these regulations "do not require these standards be

satisfied in any particular manner." Lead op., ¶17. Instead, the

regulations "generally speak to the point that [Hormel] need[s]

[its] employees to be clean in a manner to prevent product

adulteration or the general creation of unsanitary type

conditions." Notably, the circuit court found,

you just described, what if those fish scales or those
worms made their way into a can of Hormel product?
Would they pose a threat to human safety?

A. I would argue that the heat process would destroy
any organisms of concern.

Q. It might not be desirable to have those items in
the can –-

A. Correct.

Q. –- but it certainly wouldn't be a food safety
issue?

A. Correct.

6
 No. 2014AP1880.mjg

The USDA and FDA regulations do not require
employees at the Beloit facility to wear whites. The
USDA and FDA regulations do not specify who has to own
or launder the clothing worn by the employees at the
Beloit facility. Those regulations do not specify
where the items have to be donned, doffed, and stored.

. . .

Hormel employees could wear street clothes at the
Beloit facility and still comply with USDA and FDA
regulations. USDA and FDA regulations do not require
employees at the Beloit facility to keep their shoes
within the facility. The use of captive or dedicated
shoes is not the only method to avoid contamination at
the Beloit plant. Hair covering is left to the
company's discretion under the USDA and FDA
regulations but the hair needs to be secured in a
manner to prevent potential for product adulteration.
Thus, one way Hormel promotes cleanliness, quality, and safety

is by having its employees "don and doff" the "whites." But this

"donning and doffing" is not mandated by any regulation.

II. THE "DONNING AND DOFFING" OF THE "WHITES" IS NOT COMPENSABLE
WORK TIME UNDER THE CODE OR PRECEDENT.

A. WISCONSIN ADMIN. CODE § DWD 272.12
¶150 To resolve this case, I must interpret and apply Wis.

Admin. Code § DWD 272.12. Under Wis. Admin. Code § DWD
272.12(1)(a)1., employees "must be paid for all time spent in

'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's business.'" An

employee's workweek "ordinarily includes 'all time during which

an employee is necessarily required to be on the employer's

premises, on duty or at a prescribed workplace.'" Wis. Admin.

Code § DWD 272.12(1)(a)1.

7
 No. 2014AP1880.mjg

¶151 Compensable time is measured in terms of a "workday."

According to Wis. Admin. Code § DWD 272.12(1)(a)2., the

"'[w]orkday,' in general, means the period between 'the time on

any particular workday at which such employee commences their

principal activity or activities' and 'the time on any

particular workday at which they cease such principal activity

or activities.'" Activities that fall outside the workday are

called "preliminary" or "postliminary" activities. See Wis.

Admin. Code § DWD 272.12(2)(e)1.c. Pursuant to Wis. Admin. Code

§ DWD 272.12(2)(e), the "term 'principal activities' includes

all activities which are an integral part of a principal

activity." Moreover,

[a]mong the activities included as an integral part of
the principal activity are those closely related
activities which are indispensable to its performance.
If an employee in a chemical plant, for example,
cannot perform their principal activities without
putting on certain clothes, changing clothes on the
employer's premises at the beginning and end of the
workday would be an integral part of the employee's
principal activity. . . .
Wis. Admin. Code § DWD 272.12(2)(e)1.c. (emphasis added).

¶152 To summarize, if the "donning and doffing" is a

preliminary or postliminary activity, then it falls outside the

workday and does not qualify as compensable work time. In

contrast, if the "donning and doffing" is a principal activity,

then it falls within the workday and qualifies as compensable

work time. Principal activities include those activities that

are an "integral and indispensable" part of a principal
activity.

8
 No. 2014AP1880.mjg

B. PRECEDENT: WEISSMAN v. TYSON FOODS, INTEGRITY STAFFING
SOLUTIONS, INC. v. BUSK, STEINER v. MITCHELL, AND MITCHELL v.
KING PACKING CO.
¶153 In addition to interpreting and applying the pertinent

portions of Wis. Admin. Code § DWD 272.12, I also look to

applicable case law as a guide for determining when an activity

is "integral and indispensable." Four cases, one from the court

of appeals and three from the Supreme Court of the United States

are particularly relevant; thus, a brief recitation of the facts

and holdings of each case is appropriate.

¶154 In Weissman v. Tyson Foods, Inc., 2013 WI App 109, 350

Wis. 2d 380, 838 N.W.2d 502, review granted, 2014 WI 3, 352

Wis. 2d 351, 842 N.W.2d 359,10 the court of appeals considered

whether the "donning and doffing" of sanitary and protective

gear was compensable work time. 350 Wis. 2d 380, ¶1. There, the

Tyson employees at the Jefferson plant primarily produced

pepperonis, a ready-to-eat meat product. Id., ¶4. To answer the

question of whether the employees "donning and doffing"

qualified as compensable worktime, the court conducted a two-

step analysis.

¶155 First, it began with the statutory language of Wis.

Admin. Code § DWD 272.12(1)(a)1., which contains two

requirements: the activity (1) must be "controlled or required

by the employer" and (2) must be done "necessarily and primarily

for the benefit of the employer's business." Id., ¶¶17-21.

Second, the court went on to discuss whether the activity was an

10
Similar to the lead opinion, I will also refer to
Weissman v. Tyson Foods, Inc., as "Tyson Foods."

9
 No. 2014AP1880.mjg

"integral part" of a "principal activity." Id., ¶¶22-26. It

concluded that an "integral part" meant an activity that is (1)

closely related to the principal activity and (2) indispensable

to its performance. Id., ¶¶26, 28-31. Using this two-step

approach, the court concluded that the "donning and doffing" was

compensable under the circumstances. Id., ¶37; but see Mitchell

v. JCG Industries, Inc., 745 F.3d 837 (2014) (holding that the

minimal time employees spent "donning and doffing" sanitary gear

during bona fide meal breaks and at the beginning and end of

each day was not work time that had to be compensated).

¶156 A few months after the Wisconsin Court of Appeals

decided Tyson Foods, the Supreme Court of the United States

decided Integrity Staffing Solutions, Inc. v. Busk, __ U.S. __,

135 S. Ct. 513 (2014).11 In Integrity Staffing, the Court

addressed the issue of "whether the employees' time spent

waiting to undergo and undergoing [a] security screening[] [was]

compensable under the [Fair Labor Standards Act]." 135 S. Ct. at

515. The Court concluded that the "roughly 25 minutes" employees
spent each day was not compensable work time. Id.

¶157 In reaching that conclusion, the Court reiterated that

it "has consistently interpreted 'the term "principal activity

or activities" [to] embrac[e] all activities which are an

integral and indispensable part of the principal activities.'"

Id. at 517 (emphasis added) (quoting IBP, Inc. v. Alvarez, 546

11
Similar to the lead opinion, I will also refer to
Integrity Staffing Solutions, Inc. v. Busk, as "Integrity
Staffing."

10
 No. 2014AP1880.mjg

U.S. 21, 29-30 (2005)). Moreover, the Court clarified that "an

activity is . . . integral and indispensable to the principal

activities that an employee is employed to perform if it is an

intrinsic element of those activities and one with which the

employee cannot dispense if he is to perform his principal

activities." Id. (emphasis added). Finally, the court

unequivocally rejected other courts' reliance on a required-

benefit analysis: "The [Ninth Circuit] erred by focusing on

whether the employer required a particular activity. The

integral and indispensable test is tied to the productive work

that the employee is employed to perform." Id. at 519 (emphasis

omitted). Additionally, the Court noted, "A test that turns on

whether the activity is for the benefit of the employer is

similarly overbroad."12 Id. The Court rejected the required-

benefit approach because "[i]f the test could be satisfied

merely by the fact that an employer required an activity, it

would sweep into 'principal activities'" the type of preliminary

and postliminary activities that Congress worried would "bring
about the financial ruin of many employers," would result in

"windfall payments" to employees, and attempted to remedy when

12
I agree with the lead opinion's and the
concurring/dissenting opinion's conclusion that Tyson Foods need
not be overruled because although the court of appeals applied a
required-benefit test, it went on to discuss whether the
"donning and doffing" under the circumstances present in that
case were "integral and indispensable" to a principal activity.

11
 No. 2014AP1880.mjg

it enacted the Portal-to-Portal Act.13 Id. at 517, 519 (internal

quotation marks omitted) (quoting 29 U.S.C. §§ 251(a)-(b)).

¶158 The "integral and indispensable" test is no cake walk

for the party who seeks to establish its requisite elements; it

imposes a tough standard. For example, in Steiner v. Mitchell,

350 U.S. 247 (1956), the Court addressed

whether workers in a battery plant must be paid as
part of their "principal" activities for the time
incident to changing clothes at the beginning of the
shift and showering at the end, where they must make
extensive use of dangerously caustic and toxic
materials, and are compelled by circumstances,
including vital consideration of health and hygiene,
to change clothes and to shower in facilities in which
the state law required their employer to provide, or
whether these activities are "preliminary" or
"postliminary" . . . .
350 U.S. at 248 (emphasis added). In answering that question,

the Court looked to the particular circumstances of the battery

13
Congress enacted the Portal-to-Portal Act in an effort to
remedy a judicial interpretation of the Fair Labor Standard Act
that if permitted to stand would have "br[ought] about the
financial ruin of many employers" and would have resulted in a
windfall of payments to employees "for activities performed by
them without any expectation of reward beyond that included in
their agreed rates of pay." Integrity Staffing Solutions, Inc.
v. Busk, 135 S. Ct. 513, 517 (2014) (internal quotation marks
omitted) (quoting 29 U.S.C. §§ 251(a)-(b)). The Portal-to-Portal
Act exempted employers from liability for claims based on
"activities which are preliminary to or postlimiary to said
principal activity or activities." Id. (quoting 29 U.S.C.
§ 254(a)). These preliminary or postliminary activities "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." Id. (quoting 29 U.S.C. § 254(a)).

12
 No. 2014AP1880.mjg

plant, which included the fact that employees "customarily work

with or near the various chemicals in the plant[, including]

lead metal, lead oxide, lead sulphate, lead peroxide, and

sulphuric acid." Id. at 249. There, the "very great" risks

associated with the plant's conditions mandated "the removal of

clothing and showering at the end of the work period." Id. at

250. In fact, the practice of clothing removal and showering

"[had] become [such] a recognized part of industrial hygiene

programs in the industry [that] the state law of Tennessee

[required] facilities for th[at] purpose." Id.

¶159 Under those circumstances, the trial court found, and

the Court agreed, that the employees' activities (changing

clothes and showering) "[were] made necessary by the nature of

the work performed; . . . and that they [were] so closely

related to other duties performed by (petitioners') employees as

to be an integral part thereof, and [were], therefore, included

among the principal activities of said employees." Id. at 252

(emphasis added) (internal quotation marks omitted). In short,
changing clothes and showering was an "integral and

indispensable" part of the production of batteries because

without it, employees would be exposed to chemicals and

potentially poisoned. Id. at 249. To emphasize just how integral

the changing and showering was under those particular

circumstances, the Court concluded by saying, "[I]t would be

difficult to conjure up an instance where changing clothes and

showering are more clearly an integral and indispensable part of

13
 No. 2014AP1880.mjg

the principal activity of the employment than in the case of

these employees." Id. at 256.

¶160 Mitchell v. King Packing Co., 350 U.S. 260 (1956),

serves as another example of just how tough the "integral and

indispensable" test is. In Mitchell, the Court considered

"whether the knife-sharpening activities of the employees of

respondent King Packing Co." were an "integral and

indispensable" part of the principal activity of meatpacking.

350 U.S. at 261. Meatpacking includes the "slaughtering,

butchering, dressing, and distributing" of meat. Id.

¶161 There, the Court noted that "[v]arious knives and

electric saws [were] used on the butchering operation" and that

"all of the knives as well as the saws must be 'razor sharp' for

the proper performance of the work." Id. at 262 (emphasis

added). The knives needed to be "razor sharp" because "a dull

knife would slow down production which is conducted on an

assembly line basis, affect the appearance of the meat as well

as the quality of the hides, cause waste and make for
accidents." Id. The Court added, "[for] a knife to be of any

practical value in a knife job[, it] has to be . . . sharp." Id.

(emphasis added). Consequently, the Court held that the knife-

sharpening activities were "an integral part of and

indispensable to the various butchering activities for which

[the employees] were principally employed." It did so because

the knives needed to be "razor sharp" to perform the principal

activity of slaughtering, butchering, dressing, and distributing
the meat. Id. at 261, 262.

14
 No. 2014AP1880.mjg

C. THE OUTCOME OF THE LEAD OPINION AND THE CONCURRING/DISSENTING
OPINION CANNOT SURVIVE APPLICATION OF THE "INTEGRAL AND
INDISPENSABLE" TEST.
¶162 Turning to the employees at the Beloit cannery, I

conclude that the "donning and doffing" of the "whites" is not

"integral and indispensable" to performance of a principal

activity; therefore, it is not compensable. In this case, the

"donning and doffing" of the "whites" by Hormel's employees is

not an "intrinsic element" of canning food; moreover, an

employee could easily dispense with the "donning and doffing" of

the "whites" and still complete his or her principal activity of

safely canning clean food.

¶163 As a result, the lead opinion's and the

concurring/dissenting opinion's conclusion that the "donning and

doffing" of the "whites" is "integral and indispensable" to a

principal activity is incorrect. It is incorrect for two main

reasons: (1) the lead opinion says that the applicable federal

food, health, and safety regulations require Hormel to have its

employees "don and doff" the "whites", but the regulations do

not contain such a requirement; and (2) the lead opinion relies

on and affirms the circuit court's analysis, but the circuit

15
 No. 2014AP1880.mjg

court applied the wrong test.14 I will discuss these two reasons

in detail, and then I will provide two examples of when "donning

and doffing" would be compensable.

1. The FDA and USDA Regulations Do Not Support The Lead
Opinion's Conclusion.
¶164 To begin, the "donning and doffing" of the "whites" is

not required by the applicable federal food, health, and safety

regulations. There was abundant testimony regarding this point

at trial:

Q. Are the whites necessary to avoid contamination at
the Beloit facility?

A. No, they're not.

Q. Can you explain to me why that is?

A. Again, back to the regulation, there's various
means to an end. And in that type of environment, in
the food safety realm, we kind of categorize our
plants into, you know, maybe high-risk operations. In
our meat and poultry establishments that produce
ready, or what we determine to be ready-to-eat exposed
meat products, those are determined to be high-risk
operations. Canning operations such as the Beloit

14
Although this dissent refers most often to the lead
opinion, the concurring/dissenting opinion suffers from the same
shortfalls because it agrees with the lead opinion's point of
view: "While I do not join the lead opinion, I agree with its
conclusion that donning and doffing of company-required clothing
and gear at the beginning and end of the workday is 'an integral
part of a principal activity' of Hormel Foods Corporation for
which compensation is required," concurrence/dissent, ¶108
(footnote omitted) (citing Lead op., ¶7), and "I agree with the
lead opinion's conclusion that § DWD 272.12(2)(e)1. requires
Hormel to compensate its employees for 5.7 minutes per day that
have been cabined for donning and doffing clothing and equipment
at the beginning and end of the workday," id., ¶117 (citing Lead
op., ¶7).

16
 No. 2014AP1880.mjg

facility are deemed lower risk due to that 12-D type
cook process, the canning process in general.

Q. Could Hormel allow employees to wear street clothes
at the Beloit facility and still comply with the FDA
regulations?

A. Yes, they could.

Q. And could Hormel allow employees to bring whites
home with them and bring them back to the facility and
still comply with the FDA regulations?

A. Yes, they could. The clothes just need to be clean.

Q. So long as the clothing is clean?

A. That's correct.

Q. Do the FDA regulations require employees at the
Beloit facility to keep their shoes within the
facility?

A. No, they do not.

Q. What, if anything, do the regulations require in
terms of the shoes people wear at the Beloit facility?

A. Again, it's just clean and what we need to prevent
adulteration of the product.

Q. Are captive, or as you've termed it, dedicated
shoe, is that necessary to avoid contamination at the
Beloit facility?

A. No, it's not.

. . .

Q. Do the FDA regulations require employees at the
Beloit facility to wear the hardhats that you see on
Holly Hormel?

A. No, the FDA regulations do not.

Q. What, if anything, do the FDA regulations require
in terms of hardhats?

A. In terms of hardhats, nothing. As far as hair
covering, they leave it to our discretion. The hair

17
 No. 2014AP1880.mjg

should be secured, a manner secured to prevent the
potential for product adulteration.

. . .

Q. Okay. Do the FDA regulations require employees at
the Beloit facility to wear safety glasses?

A. No.

Q. Do the FDA regulations require employees at the
Beloit facility to wash their hands?

A. Again, the regulations are not very specific. It's
somewhat of a means to an end, and it does describe
where necessary they should be washing their hands. So
if they're in direct product contact, they should be
washing their hands per the FDA regulations.
(Emphasis added.) Similarly, the USDA regulations do not require

"donning and doffing":

Q. Do the USDA regulations require employees at the
Beloit facility to wear whites?

A. No, they do not.

Q. What, if anything, do the USDA regulations require
in terms of clothing at the Beloit facility?

A. Again, it's very open-ended in terms of, you know,
there's various means to an end. We just have to
prevent adulteration and the creation of insanitary
conditions. So essentially clean clothes.

Q. Do the USDA regulations specify who has to own or
launder the clothing worn at the Beloit facility?

A. They do not.

Q. Do the regulations specify where those items are
donned and doffed and stored?

A. No.

Q. Does wearing the whites at the Beloit facility
comply with the USDA regulations?

A. Yes, it does.

18
 No. 2014AP1880.mjg

Q. Are whites necessary to prevent the adulteration of
product or the creation of insanitary conditions at
the Beloit facility?

A. No, they're not.
(Emphasis added.) After hearing all the testimony regarding the

federal regulations, the circuit court even concluded that the

federal regulations do not require employees to wear the

"whites," do not specify where the "whites" have to be "donned,"

"doffed," or stored, and do not require captive shoes. Indeed,

the circuit court concluded that "Hormel employees could wear

street clothes at the Beloit facility and still comply with the

USDA and FDA regulations." (Emphasis added.) In sum, compliance

with the federal regulations under these circumstances is not——

and cannot be——what makes the "donning and doffing" of the

"whites" "integral and indispensable" to the employees'

principal activity of canning food. The lead opinion nonetheless

contorts these federal regulations into just such a conclusion.

2. The Lead Opinion Conflates The Required-Benefit Test With The
"Integral and Indispensable" Test.
¶165 The lead opinion's reliance on the circuit court's
"comprehensive decision holding in favor of the Union" is

mistaken because the circuit court incorrectly applied the

"integral and indispensable" test by repeatedly focusing on

whether the "donning and doffing" was required by and benefitted

Hormel. Lead op., ¶5. In other words, the lead opinion conflates

the required-benefit test with the "integral and indispensable"

test.

¶166 After discussing whether the "donning and doffing" of
the "whites" was required by and benefitted the employer, the
19
 No. 2014AP1880.mjg

circuit court appeared to transition to analyzing and applying

the "integral and indispensable" test. In fact, the heading of

this section in the circuit court's opinion and order reads,

"ARE THE ACTIVITIES CLOSELY RELATED TO AND INDISPENSABLE TO

PERFORMANCE OF A PRINCIPAL ACTIVITY?" Moreover, the circuit

court acknowledged that "[e]ach of the class members agreed that

there was nothing essential about the clothes Hormel required

them to wear in order to get their job done. Each of them agreed

that they could probably perform each of the movements required

by their job even if wearing street clothes." The circuit court

went on to quote plant manager Scott Ramlo:

A. The clothes that they put on are there for their
benefit and they're a good manufacturing practice and
we require it, that's not disputed. But it, it doesn't
have anything to do with the production of the
product, I guess, for lack of -- maybe I'm
oversimplifying it, but its not required, it -- I'm
sorry, it's not essential as they make the product, it
adds nothing to it. Now there are certain food
manufacturing processes that, you know, perfectly
clean clothes and, and like a ready-to-eat atmosphere,
say something like that, we don't have any of those in
the Beloit plant that it might add some value to it.
But I can go there today and produce the products and
do everything that everybody had on that screen other
than the sanitation job, I can make that product the
same quality. It's no different. And the key to the
whole process in the Beloit plant being a cannery is
that the product is pressure cooked and it's shelf-
stable. So any microorganisms, that type of thing that
might be inferred by having perfectly clean clothing
each day really is negated by the thermal
process. . . .
(Emphasis added.) Rather than applying the "integral and

indispensable" test, however, the circuit court's analysis
transformed into an analysis of the required-benefit test:

20
 No. 2014AP1880.mjg

"[t]he most important part of [Scott Ramlo's] answer was at the

start when he admitted that wearing the whites and gear was

required by Hormel." (Emphasis added.)

¶167 The circuit court's emphasis ("the most important

part") on the fact that "donning and doffing" the "whites" was

required by the employer shows that the circuit court mixed a

required-benefit analysis into what was supposed to be an

"integral and indispensable" analysis. In fact, the circuit

court's analysis is littered with references to the fact that

"donning and doffing" was required by and benefitted Hormel:

Ms. Collins agreed that she could physically perform
the tasks she is required to perform at work in
clothes she wore from home but Ms. Collins
continually, and correctly, pointed out that she is
required to wear those clothes and equipment in order
to get into the canning part of the plant pursuant to
Hormel's rules.

The overwhelming evidence is that Hormel requires the
class member to don and doff those materials to
operate the Beloit facility in compliance with the
federal regulations of USDA, FDA, and OSHA. There are
also efficiencies already noted, an avoidance of
recalls, and customer satisfaction benefits. All of
these benefits are in place for Hormel because it
requires the Class members to don and doff the
clothing and equipment on the premises.

I further find that the donning and doffing of the
whites and related gear is indispensable to the
performance of the class members' principal
activities. This is so because Hormel has made it so.
The only credible evidence is that Class members are
required to wear these materials . . . ."

These acts are obligatory, essential, and absolutely
necessary because Hormel controls the process and has
required these acts.

21
 No. 2014AP1880.mjg

The focus is not on what the United States government
may require but, instead, what Hormel requires of its
own employees.

These activities are controlled by the employer for
the employer's benefit and are integral to the Class
members' work.
(Emphasis added.) These are just a handful of times the circuit

court looked at what Hormel required and whether Hormel

benefited rather than looking to whether the "donning and

doffing" of the "whites" was "integral and indispensable" to the

principal activity of canning food.15 The circuit court did not

have the benefit of the Supreme Court of the United State's

decision in Integrity Staffing as the circuit court's decision

was issued prior to Integrity Staffing. However, this court did

have such guidance. The lead opinion's choice to rely on the

circuit court's "comprehensive decision holding in favor of the

Union" rather than the Supreme Court's instruction in Integrity

Staffing is curious.

D. ADDITIONALLY, THE TIME SPENT "DONNING AND DOFFING" THE
"WHITES" DURING MEAL PERIODS IS NOT COMPENSABLE WORK TIME.
¶168 Related to the question of whether "donning and

doffing" of the "whites" at the beginning and end of each work

day is compensable, is the question of whether "donning and

doffing" during the employees' 30-minute meal period is

compensable. I have already concluded that the "donning and

doffing" of the "whites" is not compensable because it fails the

15
Indeed, the circuit court seems to have concluded that
the "donning and doffing" of the "whites" is indispensable
because it is required. This is a conflation of the required-
benefit analysis and the "integral and indispensable" analysis.

22
 No. 2014AP1880.mjg

"integral and indispensable" test. However, I briefly comment on

the lead opinion's and the concurring/dissenting opinion's

analyses of this issue because I believe that neither can square

their determinations that the "donning and doffing" of the

"whites" at the beginning and end of the workday is compensable

with their determinations that the exact same "donning and

doffing" is not compensable when done over the lunch hour.

¶169 Most Hormel employees have a 30-minute unpaid lunch

break. An employee may choose to go off his or her work premises

to eat a meal. If an employee leaves, he or she is required to

change out of his or her "whites" and then change back into the

"whites" when he or she returns. Regardless of whether the

employee leaves (and accordingly "dons and doffs") or stays on

site, the employee is entitled only to 30 minutes.

¶170 Hormel's employees argue that they have been denied

the "right under Wisconsin law to have a 30-minute lunch period

free from duty in which the employee is free to leave the

premises." The test for whether meal time "donning and doffing"
is compensable is simple and familiar: meal time "donning and

doffing" is compensable if it is "integral and indispensable" to

an employee's principal activity.16
16
In an attempt to reach its current outcome, the
concurring/dissenting opinion distorts the analysis for
lunchtime "donning and doffing." Although the
concurring/dissenting opinion believes the "donning and doffing"
of the whites is "integral and indispensable" to "sanitary food
production" at the beginning and end of the day, it concludes
that the same "donning and doffing" of the same "whites" is no
longer "integral and indispensable" to "sanitary food
production" when done over the lunch hour. Concurrence/Dissent,
¶121. The concurring/dissenting opinion states,
(continued)
23
 No. 2014AP1880.mjg

¶171 The lead opinion and the concurring/dissenting opinion

believe that the "donning and doffing" of the "whites" is

"integral and indispensable" to canning food and, therefore,

compensable. Except, that is, when the "donning and doffing"

occurs during the lunch hour instead of at the beginning and end

of the work day. But the employees' principal activity has not

changed; it is still canning food. And what is required to be

"donned and doffed" has not changed; it is still the "whites."

First, no interest of Hormel is served by employees
leaving its facility during lunch break. Stated
otherwise, leaving Hormel's facility at lunch does not
aid in sanitary food production, which is a principal
activity of Hormel. Second, the choice to leave
Hormel's facility at lunch is totally each individual
employee's choice, not Hormel's.

Id., ¶122 (emphasis added). There are two problems with this
conclusion.

First, the concurring/dissenting opinion focuses on what
Hormel requires and whether Hormel benefits. As laid out in full
earlier, conflating the required-benefit test with the "integral
and indispensable" test goes against the law as clarified by the
Supreme Court of the United States in Integrity Staffing.

Second, the concurring/dissenting opinion applies the wrong
test by focusing on the employees' choice to leave. The test is
whether the "donning and doffing" of the "whites" when entering
and exiting the Beloit cannery (whether at the beginning and end
of the day or at lunch) is "integral and indispensable" to
canning food. The lead opinion and concurring/dissenting opinion
say it is at the beginning and end of the day. Common sense
would dictate that if "donning and doffing" the "whites" is
"integral and indispensable" to canning food at the beginning
and end of the day, then it must also be "integral and
indispensable" to canning food at the middle of the day after
lunch.

24
 No. 2014AP1880.mjg

The only change is the time at which the employee "dons and

doffs."

¶172 To say that "donning and doffing" of the "whites" is

"integral and indispensable" when an employee arrives and leaves

at the end of the day but is not "integral and indispensable"

when an employee leaves and arrives at lunch is unsupported by

the law. If the lead opinion and the concurring/dissenting

opinion conclude (as they do) that the "donning and doffing" of

the "whites" is so "integral and indispensable" to canning food

at the start of the shift at the beginning of the day that it

must be compensable, then they must also conclude that the

"donning and doffing" of the "whites" is "integral and

indispensable" to canning food at the start of the shift after

the lunch period. The lead opinion and the concurring/dissenting

opinion somehow do not. In doing so, the lead opinion and the

concurring/dissenting opinion admit that the "donning and

doffing" of the "whites" is not truly "integral and

indispensable" to the employees' principal activity of canning
food.
E. "DONNING AND DOFFING" IS SOMETIMES COMPENSABLE.
¶173 That the "donning and doffing" of the "whites" is not

compensable under our specific factual circumstances becomes

abundantly clear when compared to "donning and doffing" that is

compensable under other circumstances.

¶174 For instance, some of Hormel's employees are part of a

sanitation crew; these sanitation crew members "play a real
critical part in cleaning the entire plant up top to bottom

25
 No. 2014AP1880.mjg

every night . . . ." Employees who work in sanitation wear

different and additional clothing and equipment:

They will wear--the eyewear is more of a goggles and,
in addition to a face shield. They also wear--the
footwear would be different. They're standing in water
the entire time. So tennis shoes, something like that,
wouldn't be appropriate. And then they have--we call
it a rain suit, but it's just a big yellow pants with
suspenders and a coat that's yellow, too. So it
protects them. And then they also, I think all of them
wear arm guards. So you're sealed against the
chemicals that you work with. Pretty much every job in
our wet area, you're dealing with chemicals every
night.
Hormel pays its sanitation workers to "don and doff" this

additional clothing and equipment because "[the sanitation

workers] really couldn't do their job without [it]. I mean

safety and commonsense, everything says that they wouldn't be

able to safely work out there with all those chemicals without

this equipment." (Emphasis added.) Simply put, the sanitation

crew's principal activity is sanitizing the plant, and

sanitizing the plant necessitates contact with "very caustic or

acidic" chemicals; therefore, the sanitation crew must wear
protective gear in order to sanitize the plant with chemicals.17

17
Scott A. Ramlo, plant manager at the Beloit cannery,
testified that some of the chemicals the sanitation crew works
with are "very caustic or acidic and will cause skin damage,
irritation." He went on to say the following:

Q. I'm sorry? Now, what, what are the cleaning
materials please?

A. It can be any number of chemicals, but it's a foam
that comes from a central foaming station that will
break the surface tension of the product on to the
stainless steel. . . . So the foam that he's using
and applying there is corrosive materials that you
(continued)
26
 No. 2014AP1880.mjg

¶175 Here is a second example. In addition to running a

cannery, Hormel runs other types of food-related operations. In

Algona, Iowa, Hormel runs a dry sausage operation, which

primarily makes pepperonis.18 At trial, Francisco Velaquez, a

resource and safety manager at Hormel, testified that pepperoni

is a ready-to-eat meat product that must be produced in a ready-

to-eat facility. For comparison, plants that produce ready-to-

eat meat products are considered "high-risk operations" whereas

canneries are considered "lower risk" because food product at a

cannery goes through the 12-D cook or acidification processes.

Because pepperonis are a high-risk, ready-to-eat meat product,

employees at this type of facility must "don and doff"

additional items on top of their "whites" to prevent different

types of contamination (contamination that is not annihilated

with a 12-D cook or acidification process).19

have to be protected from. And he'll spray that. After
he's done, a quick rinse of the equipment when he
first got to it, then he'll come and put that foam
over the entire, all that equipment. You can see it's
foam because it clings.

(Emphasis added.)
18
Interestingly, the employees in Tyson Foods primarily
made pepperonis.
19
Scott Ramlo, plant manager at the Beloit facility,
testified, "There are certain things that you should probably do
if you're making bacon or pepperoni or something that somebody's
going to eat right out of the package versus what we do, which
is a thermos-processed product that's fully processed in a can,
very different than some other products."

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 No. 2014AP1880.mjg

¶176 For instance, a high-risk, ready-to-eat meat facility

is especially concerned with Listeria or Salmonella, which is

often tracked into a plant by street shoes. To combat those

risks, "[Hormel] ha[s] [its employees] change into these rubber

boots. Then [the employees] have to go through something called

a boot scrubber, and there [Hormel] appl[ies] quaternary

ammonium" to reduce contamination. Additionally, employees

"typically have plastic aprons that they put over their

whites. . . . And then they have these things called sleeve

guards that are plastic that go up to their elbows, and then

they have rubber gloves that they wear that they tuck under

their sleeve guards."

¶177 Employees at these high-risk, ready-to-eat meat

facilities are paid for the time they spend "donning and

doffing" their additional gear; that is, they are paid for the

time it takes to put on, wash, and take off their boots as well

as the time it takes to put on and take off their aprons, sleeve

guards, and rubber gloves. The "donning and doffing" of this
extra gear is compensable because it is "integral and

indispensable" to producing high-risk, ready-to-eat meat

products.

¶178 The above two examples help to illustrate exactly what

the "integral and indispensable" test calls for. Namely, for the

employer-required activity to be compensable, it must be an

"intrinsic element" of the activity performed and "one with

which the employee cannot dispense if he is to perform those
activities." Integrity Staffing, 135 S. Ct. at 517. A sanitation

28
 No. 2014AP1880.mjg

crew member cannot dispense with his or her extra clothing and

equipment due to the "very caustic or acidic" chemicals he or

she is exposed to while performing his or her principal

activities of cleaning and sanitizing. A ready-to-eat meat

facility employee cannot dispense with his or her extra clothing

and equipment due to the high-risk nature of certain types of

contamination at a ready-to-eat meat facility. But a cannery

employee at a "lower risk" facility can dispense with wearing

"whites" and still safely produce clean food.

¶179 In sum, Hormel's own employees put it best when they

testified, and the circuit court found that "there is nothing

essential about the clothes Hormel required them to wear in

order to get their job done." (Emphasis added.) I agree with

Hormel's employees. The "donning and doffing" of the "whites" is

not "integral and indispensable" to the Beloit employees'

principal activity of canning food; therefore, the time spent

"donning and doffing" the "whites" is not compensable.

III. WHAT THE LEAD OPINION DOES NOT DECIDE: THE DE MINIMIS NON
CURAT LEX DOCTRINE.
¶180 I now turn to the second issue: whether the

requirement for compensation for time spent "donning and

doffing" would be obviated by the doctrine of de minimis non

curat lex ("the law doesn't care about trifles"). Because I have

concluded that the employees "donning and doffing" of the

"whites" is not compensable, I need not consider whether the

time spent "donning and doffing" is de minimis.
¶181 However, I write to point out that the lead opinion,

while pretending to engage in a de minimis-like discussion, does
29
 No. 2014AP1880.mjg

not actually answer the question before us. Specifically, the

lead opinion does not determine whether the de minimis doctrine

applies in Wisconsin, does not explain what test or approach it

used to reach its conclusion, and thus, does not provide any

guidance for courts and parties moving forward. We grant review

of cases only when "special and important reasons are presented"

and when a decision will help "develop, clarify or harmonize the

law." Wis. Stat. § 809.62(1r),(1r)(c). In choosing not to answer

the question before this court, the lead opinion fails to help

"develop, clarify or harmonize the law." As a result, while this

case is decided by the lead opinion for these employees at this

facility, the issue of whether the de minimis doctrine applies

in Wisconsin and how a de minimis determination would be

conducted lives on.20

¶182 The de minimis doctrine simply asks the following:

should all "integral and indispensable" activities, including

those that last a single second or a handful of seconds or

minutes be recorded by and paid for by an employer? See Anderson

20
As stated previously, we were called upon to determine
whether the de minimis doctrine applies in Wisconsin. This was a
question of first impression for this court. The
concurring/dissenting opinion appears to adopt the de minimis
doctrine in Wisconsin. It states, "I adopt and apply the Lindow
test . . . .," concurrence/dissent, ¶130, and "If the time
allocated for donning and doffing were not cabined at a
specified number of minutes per employee per workday, the de
minimis rule would preclude compensation . . . .," id., ¶109.
But the concurring/dissenting opinion fails to explain why it
chooses to adopt the de minimis doctrine in Wisconsin. Similar
to choosing not to answer the question at all, blind adoption of
the doctrine without any explanation fails to help "develop,
clarify or harmonize the law." Wis. Stat. § 809.62(1r),(1r)(c).

30
 No. 2014AP1880.mjg

v. Mt. Clements Pottery Co., 328 U.S. 680, 692 (1946) ("Split-

second absurdities are not justified by the actualities of

working conditions . . . ."). Or are there ever activities that

take such a small, trivial amount of time that a court should

not expect an employer to keep track of and compensate for this

time? See JCG Industries, 745 F.3d at 842, 841 (noting that

"[c]ommon sense has a place in adjudication" and commenting that

"[o]ne reason to withhold a remedy is that the harm is small but

measuring it for purposes of calculating a remedy would be

difficult, time-consuming, and uncertain, hence not worthwhile

given that smallness"); Lindow v. United States, 738 F.2d 1057,

1062 (9th Cir. 1984) ("[C]ommon sense must be applied to the

facts of each case."). The Supreme Court of the United States

answered the de minimis question by holding that "[w]hen the

matter in issue concerns only a few seconds or minutes of work

beyond the scheduled working hours, such trifles may be

disregarded." Anderson, 328 U.S. at 692.

¶183 As a result, when a federal court determines that the
time spent on an activity is compensable because it is "integral

and indispensable," the court next determines whether that

compensable time is rendered non-compensable by the de minimis

doctrine. See id. at 693; Lindow, 738 F.2d at 1062 ("As a

general rule, employees cannot recover for otherwise compensable

time if it is de minimis."). In contrast, when a federal court

determines that the time spent on the activity is not "integral

and indispensable," the court's analysis ends and no
compensation is due. See Integrity Staffing, 135 S. Ct. at 515

31
 No. 2014AP1880.mjg

(concluding that the activity was not "integral and

indispensable" and, therefore, not proceeding to a de minimis

analysis). We have never before determined whether we should

take this same approach in Wisconsin.21 We were called upon to

make that determination in this case.

¶184 Because the lead opinion concludes that the employees

"donning and doffing" of the "whites" is compensable, it could

have engaged in a full discussion of whether the de minimis

doctrine applies in Wisconsin.22 But it did not. To quote the

lead opinion,

21
If we adopt this approach, then one possible way of
resolving this issue would be as follows: (1) if a court
concludes that an activity is not "integral and indispensable,"
then the analysis ends and no compensation is owed; but (2) if a
court concludes that an activity is "integral and
indispensable," then it must next consider whether the time
spent on that activity is so short in duration that it qualifies
as de minimis, in which case the time is not compensable. Under
this approach, because the lead opinion and the
concurring/dissenting opinion concluded that the time spent
"donning and doffing" is "integral and indispensable," they
would need to then consider whether that time is so short in
duration that it qualifies as de minimis. If it qualifies as de
minimis, then no compensation is due.
22
Simply put, the lead opinion had an abundance of options
in this case, but it chose none. The lead opinion could have
concluded that the de minimis doctrine does not apply in
Wisconsin. The lead opinion could have concluded that the de
minimis doctrine applies in Wisconsin and then provided a
practical framework for how to conduct a de minimis analysis.
The lead opinion could have concluded that the de minimis
doctrine applies and then held that the 2.903 minutes spent
donning and doffing each day was too long in duration to qualify
as de minimis. Rather than choose any of the above options, the
lead opinion picked an outcome and reached a conclusion for
these litigants on this day.

32
 No. 2014AP1880.mjg

Assuming, without deciding, that the de minimis
doctrine is applicable to claims under Wis. Admin.
Code § 272.12, we conclude that in the instant case,
the de minimis doctrine does not bar compensation for
the time spent donning and doffing the required
clothing and equipment because the time spent donning
and doffing is not a "trifle."
Lead op., ¶98 (emphasis added).23 Why assume without deciding?

The question was certified by the court of appeals, the parties

spent roughly 17 pages of their respective briefs on the issue,

and the parties addressed this issue during oral argument before

this court. Perhaps the lead opinion chooses not to answer the

question because it cannot reach its present outcome given what

the law is.

¶185 The law is this. The Supreme Court of the United

States first applied the de minimis doctrine in Anderson v. Mt.

Clements Pottery Co., 328 U.S. 680 (1946). There, the employees

alleged that their employers' method of calculating hours did

not "accurately reflect all the time actually worked and that

they were thereby deprived of" proper overtime compensation.

Anderson, 328 U.S. at 684. The employees wanted their walk time

to and from their workstations as well as their "donning and
doffing" of work clothing included in their work hours. Id. at

682-83.

¶186 In resolving that question, the Court noted,

23
The concurring/dissenting opinion also notes that the
lead opinion dodges the question of whether the de minimis
doctrine applies in Wisconsin: "The lead opinion concludes that
donning and doffing at the beginning and end of the workday are
not de minimis, assuming that the de minimis rule may be applied
to the Union's claims." Concurrence/Dissent, ¶1125 (emphasis
added).

33
 No. 2014AP1880.mjg

When the matter in issue concerns only a few seconds
or minutes of work beyond the scheduled working hours,
such trifles may be disregarded. Split-second
absurdities are not justified by the actualities of
working conditions or by the policy of the Fair Labor
Standards Act. It is only when the employee is
required to give up a substantial measure of his time
and effort that compensable working time is involved.
Id. at 692 (emphasis added). Later in the opinion, the Court

reiterated, "it is appropriate to apply a de minimis doctrine so

that insubstantial and insignificant periods of time spent in

preliminary activities need not be included in the statutory
workweek. Id. at 693 (emphasis added). The Anderson Court's

focus was on time, specifically whether the activity took just

"a few seconds or minutes." See also Lindow, 738 F.2d at 1062

("An important factor in determining whether a claim is de

minimis is the amount of daily time spent on the additional

work.").

¶187 While making sure to explain that it is not deciding

whether the de minimis doctrine applies in Wisconsin, the lead

opinion nevertheless discusses the doctrine and pays lip service

to Anderson by quoting its use of the word "trifle." But

unsurprisingly the lead opinion chooses not to apply Anderson's

test.24 Instead, the lead opinion cherry-picks one factor (not

24
Again unsurprisingly, the concurring/dissenting opinion
also gives Anderson, the Supreme Court of the United States
decision that created the de minimis doctrine, a fleeting
glance. The concurring/dissenting opinion mentions Anderson a
meager three times in its entire de minimis discussion, which
spans approximately five pages. See Concurrence/Dissent, ¶¶126,
128, 131. Rather than rely on a Supreme Court decision, the
concurring/dissenting opinion roots its analysis in a Ninth
Circuit opinion, Lindow v. United States, 738 F.2d 1057 (9th
Cir. 1984). In fact, the concurring/dissenting opinion formally
(continued)
34
 No. 2014AP1880.mjg

found in Anderson) in which to ground its conclusion.25 The lead

opinion states,

[i]n the instant case, employees spend approximately
24 hours per year donning and doffing. Viewed in light
of the employees' hourly rate of $22 per hour, the
unpaid period in question may amount to over $500 per
year for each employee and substantial sums for
Hormel. We agree with the circuit court that in the
instant case this time is not a "trifle."
Lead op., ¶102 (emphasis added).26

"adopt[s] and appl[ies] the Lindow test." Concurrence/Dissent,
¶130.

Lindow is cited by federal courts for its four-factor de
minimis approach. Under Lindow, a de minimis determination looks
at (1) the amount of daily time spent on the additional work,
(2) the administrative difficulty in recording that additional
time, (3) the aggregate amount of compensable time, and (4) the
regularity of the additional work. 738 F.2d at 1062-63. Missing
from the concurring/dissenting opinion's discussion of Lindow is
a critical quote from Lindow: "Most courts have found daily
periods of approximately 10 minutes de minimis even though
otherwise compensable." Id. at 1062. Lindow itself stands for
the proposition that the 7 to 8 minutes employees spent on
activities qualified as de minimis. Id. at 1063-64.
25
The lead opinion does not cite Lindow, but it arguably is
where the lead opinion hand-picked the aggregate sum factor. If
so, the lead opinion conveniently forgot to look at the first
factor: "the amount of daily time spent on the additional work."
Lindow, 738 F.2d at 1062 (emphasis added).
26
The concurring/dissenting opinion also utilizes an
aggregate sum factor: "In addition, although 5.7 minutes per day
is a small amount of time, because it is expended every day, the
aggregate amount of each employee's claim per year is $500,
which is significant. It is also significant to Hormel as an
aggregate amount for all food preparation employees."
Concurrence/Dissent, ¶136 (emphasis added). Not only is the lead
opinion's and the concurring/dissenting opinion's seemingly
outcome oriented choice to ground their analyses in an aggregate
sum factor not supported by the law (namely, Anderson), but also
their outcome leads to disparate treatment under the law. A de
minimis analysis that is focused on a dollar figure will favor
(continued)
35
 No. 2014AP1880.mjg

¶188 Hidden in the lead opinion's language is a conclusion

that is at odds with the law: that 2.903 minutes is not de

minimis. The lead opinion cannot state outright that 2.903

minutes is not de minimis because it would be hard-pressed to

reconcile that determination with the fact that Anderson

designed the de minimis doctrine to preclude compensation when

"the matter in issue concerne[d] only a few seconds or minutes

of work." 328 U.S. at 692 (emphasis added). Moreover, it cannot

state outright that 2.903 minutes is not de minimis because it

would have to face the fact that "[m]ost courts have found daily

periods of approximately 10 minutes de minimis even though

otherwise compensable." Lindow, 738 F.2d at 1062 (emphasis

added) (holding that the 7 to 8 minutes the employees spent on a

pre-shift activity in that case was de minimis and citing a

litany of cases for the proposition that daily periods of 10

minutes or less are de minimis).

those employees who are paid a higher wage. Employees who make
only $5 per hour and file a wage and hour claim will have their
aggregate sum declared de minimis, but employees who make $22
per hour will have their aggregate sum declared not de minimis.
Perhaps this is why Anderson's focus was on time, and whether
the activity concerned just a few "minutes or seconds."

36
 No. 2014AP1880.mjg

¶189 If the lead opinion were to actually answer the

question of whether the de minimis doctrine is a part of

Wisconsin law, then it would have to focus on——or at the very

least discuss——the amount of daily time spent on "donning and

doffing" (here, 2.903 minutes) and whether that time qualifies

as just a few "seconds or minutes." The lead opinion tiptoes

past this quagmire by sidestepping the question entirely.27

27
The concurring/dissenting opinion also creeps past the
time predicament but does so in a different way. The
concurring/dissenting opinion concludes,

If the time allocated for donning and doffing were not
cabined at a specified number of minutes per employee
per workday, the de minimis rule would preclude
compensation because keeping accurate payroll records
of the varying time that each employee spends donning
and doffing would appear to be a nearly impossible
administrative task for Hormel.

Concurrence/Dissent, ¶109. In sum, because the parties
stipulated to 5.7 minutes, 5.7 minutes is not de minimis.
Otherwise, 5.7 minutes would be de minimis. According to the
concurring/dissenting opinion, this time becomes de minimis if
it is not cabined because "if Hormel were required to record for
payroll purposes the varying amounts of the time that each
individual employee expends to don and doff at the beginning and
end of each workday, it would appear to be almost an
administrative impossibility to do so accurately." Id., ¶132;
see also id., ¶¶ 109, 135, 138, 140.

The problem with the concurring/dissenting opinion's
conclusion that it "would appear to be" an administrative
impossibility to accurately record the time is that the circuit
court made the exact opposite finding of fact in its opinion and
order. The circuit court spent nearly two and a half pages in
its order and opinion specifically addressing whether it would
be administratively difficult for Hormel to accurately record
"donning and doffing" time. Indeed, the section of the circuit
(continued)
37
 No. 2014AP1880.mjg

Consequently, the question is left unanswered and Wisconsinites

are left wondering.

¶190 In sum, the lead opinion could have resolved the issue

of whether the de minimis doctrine applies in Wisconsin, and it

could have provided a workable test or approach for how to

conduct a de minimis analysis. It chose not to. When we accept a

case, we do so to help "develop, clarify, or harmonize the law."

As such, the lead opinion owed the people of Wisconsin and the

parties a full and thorough discussion on whether the de minimis

doctrine applies in Wisconsin as well as a discussion on the

proper method or approach for conducting a de minimis analysis.

court's opinion and order is titled "Practical Administrative
Difficulties." There, the court stated,

Despite carrying the burden of proof on the de minimis
issue, I find that Hormel has not provided credible
evidence of administrative difficulties which may be
encountered if it is required to record the additional
donning and doffing time. As a result, factor two [of
the Lindow test] also falls in favor of the Class.

(Emphasis added.) Later, the circuit court again emphasized that
"the vague and unsubstantiated opinions of Hormel employees
about the administrative difficulties of reimbursing the Class
members for donning and doffing are belied by the daily
activities at the Beloit Hormel plant. . . . Hormel's processes
show that it is able to monitor [employees] adequately."
(Emphasis added.) Thus, the concurring/dissenting opinion's
conclusion that it "would appear to be" an administrative
impossibility to record the time spent "donning and doffing" is
directly contrary to the circuit court's explicit finding of
fact on that point. The concurring/dissenting opinion "appears"
to ignore the circuit court's opposite finding of fact, as it
fails to acknowledge the circuit court's factual finding and
fails to provide any discussion of whether the circuit court's
finding would be clearly erroneous.

38
 No. 2014AP1880.mjg

Because the lead opinion elects to leave today's question

unanswered, it short-changes the people of Wisconsin.

IV. CONCLUSION

¶191 I cannot join the lead opinion because I believe it

reaches the wrong conclusion as to whether the "donning and

doffing" of the "whites" is "integral and indispensable" and

reaches no determination as to whether the de minimis doctrine

is a part of Wisconsin law or how a de minimis analysis is to be

conducted in future cases.

¶192 For the reasons stated, I respectfully dissent.

¶193 I am authorized to state that Justice ANNETTE

KINGSLAND ZIEGLER joins this dissent.

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 No. 2014AP1880.mjg

1