IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Case No.: 5-07-CV-00174-H(2)
LILIANA MARTINEZ-HERNANDEZ, et al.,
Plaintiffs,
v.
BUTTERBALL, LLC,
Defendant.
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT ON TWO ISSUES:
DONNING AND DOFFING PERSONAL PROTECTIVE EQUIPMENT I S INTEGRAL
AND INDISPENSIBLE TO WORKERS’ PRIMARY JOB DUTIES
AND
DISMISSING BUTTERBALL’S DE MINIMIS DEFENSE PRE-JANUARY 2006
__________________________________________________
LAW OFFICE OF ROBERT J. WILLIS
Robert J. Willis
P.O. Box 1269
Raleigh, NC 27602
Tel: (919)821-9031
Fax: (919)821-1763
Email: rwillis@rjwillis-law.com
NC Bar No.: 10730
GETMAN & SWEENEY, PLLC
Dan Getman & Matt Dunn
9 Paradies Lane
New Paltz, NY 12561
Tel: (845) 255-9370
Fax: (845) 255-8649
Email: dgetman@getmansweeney.com
Email: mdunn@getmansweeney.com
Case 5:07-cv-00174-H Document 477 Filed 11/19/10 Page 1 of 47
TABLE OF CONTENTS
I. STATEMENT OF THE CASE ............................................................................................1
II. STATEMENT OF RELEVANT FACTS ............................................................................1
Butterball’s Production Workers .........................................................................................1
Butterball’s Required Donning, Doffing and Sanitizing and Waiting Process .........................2
Butterball’s PPE Is Integral and Indispensible to Pr duction Workers’ Jobs ..........................4
Butterball Did Not Pay Production Employees for the Time That It’s Expert
Measured ......................................................................................................................12
III. ARGUMENT .....................................................................................................................13
A. Summary Judgment Standard ............................................................................................13
B. Fair Labor Standard Act Principles ..............................................................................14
C. PPE is Integral and Indispensable to Work on the Production Floor ......................................16
1. Butterball Requires Workers to Wear PPE to Perform Their Job Duties ..........................20
2. Workers Wear PPE for Butterball’s Benefit ...........................................................22
3. The Fact That Some Workers Put On Boots or Bumpcaps Before Arriving
Does Not Mean that Other Workers Donning PPE At ThePlant Are Not
Engaged In A Principal Work Activity. ....................................................................26
4. Butterball Must Pay For All Time Spent Donning PPE From The First
Principal Work Activity, Notwithstanding Whether the PPE Is Deemed
Unique or Non-Unique .................................................................................................29
D. Butterball’s De Minimis Defense Pre-December 2005 Is Without Merit................................32
1. Taking Butterball’s Expert’s Testimony As Correct, Butterball Recorded
The Uncompensated Time .....................................................................................35
2. According to Butterball’s Expert, The Amount of Unpaid Compensable
Time Is Substantial .................................................................................................37
3. Butterball Requires Uncompensated Work On A Daily Basis ..........................................39
IV. CONCLUSION...............................................................................................................39
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TABLE OF AUTHORITIES
Cases
A.H. Phillips v. Walling, 324 U.S. 490 (1945)........................................................................ 15
Addison v. Huron Stevedoring Corp., 204 F.2d 88 (2d Cir. 1953)......................................... 38
Aiken v. City of Memphis, 190 F.3d 753 (6th Cir.1999) ......................................................... 35
Alvarez v. IBP, Inc., 399 F.3d 894 (9th Cir. 2003) .................................................................. 20
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..................................................... 14, 16
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946) ............................................ 16, 32
Anderson v. Perdue Farms, Inc., 604 F.Supp.2d 1339 (M.D.Ala. 2009) ......................... 20, 28
Arnold v. Ben Kanowsky Inc., 361 U.S. 388 (1960) ............................................................... 15
Atlantic Co. v. Broughton, 146 F.2d 480 (5th Cir.1944) ........................................................ 34
Auer v. Robbins, 519 U.S. 452 (1997) ............................................................................... 28
Ballaris v. Wacker Siltronic Corp., 370 F.3d 901 (9th Cir. 2004).......................................... 26
Barrentine v. Arkansas-Best Freight System, Inc., et al., 450 U.S. 728 (1981) ........................... 14
Brock v. City of Cincinnati, 236 F.3d 793 (6th Cir.2001) ...................................................... 35
Brock v. Richardson, 812 F.2d 121 (3d Cir.1987).................................................................. 15
Brooks v. Vill. of Ridgefield Park, 185 F.3d 130 (3d Cir. 1999) ............................................ 34
Calderon v. Witvoet, 999 F.2d 1101 (7th Cir.1993) ............................................................... 34
Celotex v. Catrett, 477 U.S. 317 (1986) ...........................................................................14, 16
Clark v. Wells Fargo Financial, Inc., 2008 WL 4787444 (M.D.N.C. Oct. 30 2008)............. 33
Collins v. Sanderson Farms, Inc., 568 F. Supp.2d 714 (E.D. La. 2008) ............................... 39
De Asencio v. Tyson Foods, Inc., 500 F.3d 361 (3d Cir. 2007).............................................. 31
Drayton v. Pilgrim’s Pride Corp., 472 F.Supp.2d 638 (E.D.Pa. 2006)........................................ 24
Case 5:07-cv-00174-H Document 477 Filed 11/19/10 Page 3 of 47
iii
Fox v. Tyson Foods, Inc., No. 99CV01612, 2002 WL 32987224 (N.D.Ala. Feb. 4,
2002) ................................................................................................................................... 32
Franklin v. Kellogg Co., ---F.3d ----, 2010 WL 3396843 (6th Cir. 2010).................................... 24
Garcia v. Frog Island Seafood, Inc., 644 F.Supp.2d 696 (E.D.N.C. 2009) ............................. 14
Garcia v. Tyson Foods, Inc., 474 F.Supp.2d 1240 (D.Kan.2007) ......................................... 31
Haywood v. Barnes, 109 F.R.D. 568 (E.D.N.C. 1986)........................................................... 15
Helmert v. Butterball, LLC, No. 4:08CV00342 JLH, 2009 WL 5066759 (E.D.Ark.
Dec. 15, 2009) ......................................................................................................... 25, 33
Hosler v. Smithfield Packing Co., Case No. 7:07-CV-166-H (E.D.N.C. M&R filed
August 31, 2010)........................................................................................................... 20
Hosler v. Smithfield Packing Co., Inc., 7:07-CV-166-H, Doc. 442 (E.D.N.C. Sept.
27, 2010) ....................................................................................................................... 16, 31
Hoyt v. Ellsworth Cooperative Creamery, 07-CV-386-JCS, 2008 WL 3828583
(W.D.Wisc. 2008) .......................................................................................................... 21
IBP, Inc. v. Alvarez, 546 U.S. 21 (2005)............................................................... 16, 18, 19, 28
Johnson v. Koch Foods, Inc., 670 F.Supp.2d 657 (E.D.Tenn. 2009) .................................... 32
Jordan v. IBP, Inc., 542 F.Supp.2d 790 (MD.Tenn. 2008) ....................................... 25, 27, 31
Kasten v. Saint-Gobain Performance Plastics Corp., 556 F.Supp.2d 954
(W.D.Wis.2008)....................................................................................................... 37, 39
Kelley v. Alamo, 964 F.2d 747 (8th Cir.1992) ................................................................... 15
Landaas v. Canister Co., 188 F.2d 768 (3d Cir.1951)............................................................ 38
Lee v. Am-Pro Protective Agency, Inc., 860 F.Supp. 325 (E.D.Va. 1994) ................................... 32
Lindow v. U.S., 738 F.2d 1057 (9th Cir.1984)...................................................... 35, 37, 38, 40
Lopez v. Tyson Foods, No. 8:06CV459, 2007 WL 1291101 (D.Neb. March 20,
2007) ................................................................................................................................... 32
McDonald v. Kellogg Co., --- F.Supp.2d ---, 2010 WL 3724649 (D.Kan. Sept. 16,
2010) ................................................................................................................................... 33
Case 5:07-cv-00174-H Document 477 Filed 11/19/10 Page 4 of 47
iv
Mitchell v. King Packing Co., 350 U.S. 260 (1956) ............................................................... 32
Mitchell v. Lublin, McGaughy & Assocs., 358 U.S. 207 (1959)............................................. 15
Parker v. Smithfield Packing Co., Case No. 7:07-CV-176-H, Doc. 281 (E.D.N.C.
M&R filed August 31, 2010) .............................................................................................. 20
Parker v. Smithfield, 7:07-cv-00176-BO, Doc. 234 (E.D.N.C. Jan. 15, 2010)............................. 33
Perez v. Mountaire Farms, Inc., 610 F.Supp.2d 499 (D.Md. 2009)...................................... passim
Reich v. Monfort, Inc., 144 F.3d 1329 (10th Cir. 1998) ........................................................... 38
Rogers v. City of Troy, N.Y., 148 F.3d 52 (2d Cir. 1998) ...................................................... 34
Saunders v. John Morrell & Co., No. C88-4143, 1992 WL 531674 (N.D.Iowa
Oct. 14, 1992)..................................... ..................................................................... 37, 39
Spoerle v. Kraft Foods Global, Inc., 527 F.Supp.2d 860 (W.D.Wis.2007)............................ 32, 39
Steiner v. Mitchell 350 U.S. 247 (U.S. 1956) ................................................................. passim
Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944) ........... 16, 21, 27
Thrower v. Peach County, Georgia, Bd. Of Educ., 5:08-CV-176 (MTT), 2010 WL
4536997 (M.D.Ga. Nov. 2, 2010) ................................................................................. 40
U.S. v. Klinghoffer Bros. Realty Corp., 285 F.2d 487 (2d Cir.1960) ..................................... 34
Statutes
21 U.S.C. § 461.................................................................................................................. 23
29 U.S.C. § 254...................................................................................................... 16, 18, 30
29 U.S.C. § 662.................................................................................................................. 23
29 U.S.C. §207................................................................................................................... 15
29 U.SC. § 666................................................................................................................... 23
29 USC § 653..................................................................................................................... 25
NCWHA § 95-25.22 ........................................................................................................... 34
Case 5:07-cv-00174-H Document 477 Filed 11/19/10 Page 5 of 47
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NCWHA § 95-25.6 ............................................................................................................. 34
Other Authorities
Wage and Hour Advisory Memorandum No. 2006-2 (May 31, 2006)................................... 22, 31
Wage and Hour Division Opinion Letter, U.S. DOL, 2001 WL 58864 (Jan 15,
2001) ................................................................................................................................... 21
Rules
Fed. R. Civ. P. 56......................................................................................................... 14, 16
Regulations
21 C.F.R. § 110.10................................................................................................... 5, 24, 25
29 C.F.R. § 778.106........................................................................................................... 34
29 C.F.R. § 785.47............................................................................................................. 37
29 C.F.R. § 790.6 ......................................................................................................... 17, 28
29 C.F.R. § 790.8 ............................................................................................. 15, 18, 19, 21
9 C.F.R. § 416.12..................................................................................................... 5, 24, 25
9 C.F.R. § 416.5................................................................................................................. 24
9 C.F.R. § 430.4................................................................................................................. 24
9 C.F.R. § 500.2........................................................................................................... 23, 24
Case 5:07-cv-00174-H Document 477 Filed 11/19/10 Page 6 of 47
I. STATEMENT OF THE CASE
This case concerns the way Butterball pays its production line employees at its Duplin
County processing plant. Butterball does not pay production line employees based on their actual
time. Butterball usually ignores the actual work time for this particular class of workers. Instead,
Butterball pays line employees for their scheduled time on the line - time Butterball calls
"GANG" time, rather than paying for the actual time worked. Then Butterball automatically
deducts either 30 or 60 minutes to account for breaks.
Butterball has clear policies which it uses to reduce plaintiffs' pay across the entire class of
employees. These policies are written and are impleented across the board. Thus, regardless of
the actual time spent on donning, doffing, and sanitizi g required personal protective equipment
pre and post shift and during break, Butterball refus s to pay workers for all the time they have
worked.
The FLSA was designed to prevent employers from shorting employees by manipulating what
hours are treated as "work." The North Carolina Wage nd Hour Act ("NCWHA) law has similar
protections. Plaintiffs bring this case to collect the entire amount of back pay due to class of
Butterball line employees who were not paid for their actual time working.
II. STATEMENT OF RELEVANT FACTS
Butterball’s Production Workers
1. Butterball is one of the largest turkey processors in the world. Ex. 1, Butterball, LLC, Corporate
Information website; Ex. 2, Butterball’s website, Butterball, LLC, Corporate Information,
International website.
2. The Duplin County North Carolina plant is Butterball’s largest turkey processing plant. Ex. 3,
Employee Handbook, p.3.
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3. It employs approximately 2,200 production workers. See, Ex. 4, Sanderson Dep., p. 72:19-23;
Ex. 5, Fernandez Report, p. 29.
4. Butterball’s production workers are responsible for preparing and processing Butterball’s turkey
products. See, e.g., Ex. 6, Aponte Dep., 15:10-11; Ex. 7, Martinez-Hernadez Dep., p. 10:8-16;
Ex. 8, Barnes Dep., p.10:1-3 (job is to hang birds).
5. They work in one of two parts of the plant processing various turkey products. See, Ex. 9,
Brinson, Sandra Dep., p. 26:11-14; Doc. 455, p. 5, ¶11 and 15.
6. Although workers perform a variety of tasks and work in different areas, they must all put on
personal protective equipment (PPE) before they enter the production area. Ex. 8, Barnes Dep.,
pp.31:16-33:4; Ex. 5, Fernandez Report, p. 20, Table 12.
7. They are paid an hourly wage for the time the production line runs. Ex. 10, Butterball 30(b)(6)
Dep., March 25, 2008, p. 82:5-13; Ex. 11, Ingram Dep. p. 15:6-:9; Doc. 455, p.3, ¶ 2; Ex. 12,
Notice.
Butterball’s Required Donning, Doffing and Sanitizing and Waiting Process
8. Butterball requires workers to arrive at the plant before the start of their shift. See e.g., Ex. 7,
Martinez-Hernandez Depo., 12:12-22; Ex. 13, Plaintiffs' Punch Detail.
9. They must arrive early enough so that they can engage in mandatory and thorough sanitization
and food safety regimen in order to be physically on the production floor at their scheduled start
time.
10. Before entering the production floor, workers clock into the Kronos time system with their
Butterball issued personal ID card. Workers follow mandatory procedures to don PPE, sanitize
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themselves and their boots. They must also deposit ersonal items in their locker to avoid food
contamination and they immediately start donning their approved personal protective
equipment ("PPE"). See e.g., Ex. 6, Aponte Depo., 70:5- 3:3; Ex. 7, Martinez-Hernandez
Depo., 42:19-43:2.
11. Butterball supplies lockers and a changing areato workers to store PPE when they are out of the
plant, and to store their personal items which cannot be brought into the production area when
they are working.
12. Throughout the workday, workers receive two thirty minute unpaid periods. Ex. 14, Time
Calculation Rules.
13. Butterball trains workers that the thirty minute breaks run from the time workers leave the
production line, to when they must be back on the line to resume work.
14. Butterball does not record the actual time workers spend on break or the actual time workers are
free on break from all donning, doffing, or other compensable work.. See e.g., Ex. 13, Plaintiffs'
Punch Detail; Doc. 455, p. 7, ¶18.
15. During the two brief breaks, workers are required to remove and store - "doff - their PPE. Ex. 6,
Aponte Dep., 93:23-100:9; Ex. 7, Martinez-Hernandez D p., 66:7-67:3.
16. After doffing their PPE, employees are allowed to use the bathroom, smoke a cigarette, or eat.
Ex. 6, Aponte Dep., 100:16-24; Ex. 7, Martinez-Hernandez Dep., 65:4-21.
17. Before they return to the production line, Plaintiffs are required to once again don their PPE.
Ex. 6, Aponte Dep., 100:1:15; Ex. 7, Martinez-Hernandez Dep., 66:21-24.
18. If they arrive late to the production line then they can be disciplined. Ex. 7, Martinez-Hernandez
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Dep., 67:17-68:7.
19. Finally, at the end of the shift - when the production line stops- workers clean and take off all
their PPE for the last time. Ex. 16, Second Aponte Decl., PX 10-1; Ex. 7, Martinez-Hernandez
Dep., 54:16-55:4.
20. They deposit the disposable PPE in the trash and return some PPE to Butterball for sanitizing.
Ex. 6, Aponte Dep., 94:21-95:13; Ex. 7, Martinez-Hernandez Dep., 56:9-57:12.
21. They also are required to clean some of the PPE, such as their boots. Ex. 6, Aponte Dep.,
136:16-17; Ex. 16, Second Aponte Decl.; Ex. 10, Butterball 30(b)(6) Dep., March 25, 2008, p.
187:7-188:8, 189:4-10.
22. They dispose of some of the PPE, place some PPE in bins to be washed. Ex. 17, Butterball
30(b)(6) Dep., Jan. 13, 2010, p. 173:7-13.
23. Workers place their PPE in their lockers to store f r their next shift. See e.g., Ex. 18, Gibbs
Dep., p. 84:7-11; Ex. 19, Hill Dep., p. 36:10-21; Ex. 20, Grady Dep., p. 63; Ex. 21, Joyner Dep.,
p. 32.
24. They also retrieve their personal items from their lockers and clock out. The process begins
anew with the next shift. Ex. 6, Aponte Dep., pp. 75:24-78; Ex. 10, Butterball 30(b)(6) Dep.,
March 25, 2008, p. 109:3-9.
Butterball’s PPE Is Integral and Indispensible to Production Workers’ Jobs
25. Workers must wear an array of PPE in order to perform their job duties. Ex. 10, Butterball
30(b)(6) Dep., March 25, 2008, pp. 89:23-90:6; Ex. 22, PPE List.
26. This PPE includes boots, earplugs, hairnets and beard nets, bump caps, plastic sleeves, cotton
Case 5:07-cv-00174-H Document 477 Filed 11/19/10 Page 10 of 47
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gloves, plastic gloves, smocks, and aprons. Ex. 23, PPE List; Ex. 5, Fernandez Report, p. 20,
Table 12; Ex. 22, PPE List.
27. For purposes of this litigation, Butterball labels boots, hair nets, ear plugs, smock, gloves, bump
caps, safety glasses as non-unique gear. Ex. 24, Butterball 30(b)(6) Dep. Jan. 14, 2010, p.
143:11-12.
28. Workers who use a knife or scissors must also wear an arm guard, Kevlar glove, and steel mesh
glove. Ex. 11, Ingram Dep. pp. 147:13-148:22, 154:1-156:19.
29. Other workers wear coveralls and freezer jackets. Ex. 11, Ingram Dep. pp. 152:24-153:8.
30. Some workers put on duct tape and paper towels to perform their job duties. See Ex. 25,
Videotape of Live Hang Department
31. Workers wear different PPE depending of their job duties. Ex. 15, “What does HACCP,
GMP’s, SSOP’s, and SPS’s stand for?; Ex. 26, Good Manufacturing Practices (GMP’s); Exs.
22 and 23, PPE Lists.
32. Workers have to wear PPE in order to prevent food contamination. Ex. 15, “What does
HACCP, GMP’s, SSOP’s, and SPS’s stand for?; Ex. 26, Good Manufacturing Practices
(GMP’s); Ex. 30, Moore Dep. p. 89:9-14; Ex. 28, Brinson, S. Dep., pp. 40:8-41:11 (Senior
Human Resources Representative, Brinson Dep., p. 6:11-13); Ex. 29, Swan Dep. pp. 119:23-
120:20; Ex. 31, Lenaghan Dep. July 26, 2010, p. 91:4-16; Ex. 3, Employee Handbook at BB
00437-438.
33. The Food and Drug Administration and U.S. Department of Agriculture regulate the turkey
industry in order to prevent adulterated food. 21 C.F.R. § 110.10; 9 C.F.R. § 416.12. Butterball
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has implemented “Good Management Practices” or “GMPs” to prevent food contamination.
Ex. 15, “What does HACCP, GMP’s, SSOP’s, and SPS’s stand for?; Ex. 26, Good
Manufacturing Practices (GMP’s).
34. GMPs are policies, procedures and practices to prevent food contamination. Ex. 15, “What does
HACCP, GMP’s, SSOP’s, and SPS’s stand for?”; Ex. 26, Good Manufacturing Practices
(GMP’s).
35. The turkey industry is susceptible to contaminatio from Listeria monocytogenes among other
possible contaminants. 9 C.F.R. § 430.4. Listeria monocytogenes can cause death. 9 C.F.R. §
430.4; Ex. 27, Listeriosis description by the Center for Disease Control and Prevention.
36. Butterball has established written GMPs that it distributes to its workers. Butterball explains
that:
Good Manufacturing Practices are codes of practice designed to reduce the chance of
problems which could adversely affect a manufactured product. The quality of the product
produced is directly related to the environment in which it is produced and the hygiene of
the people who handle the product and people who tour the processing plant. Butterball,
LLC (Mount Olive has a GMP policy, which includes di ease control and cleanliness.” Ex.
15, “What does HACCP, GMP’s, SSOP’s, and SPS’s stand for?”.
37. Butterball’s GMPs state:
Hygienic practices are necessary to protect against contamination of food on the food, food
contact surfaces and food-packaging materials. Thus employees are required to “wear an
approved smock” and employees “working with exposed m at must wear approved plastic
sleeves, apron and gloves over any non-plastic arm and hand coverings (e.g. cotton gloves).
Ex. 26, Good Manufacturing Practices (GMP’s)
38. Butterball recognizes the severe consequences of the failure to provide its customers with
bacteria free products. For example, Butterball expains to its workers that people may become
ill or die, and may cause the USDA to close Butterball’s plant. Ex. 3, Employee Handbook at
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BB 00436 (The Butterball, LLC HACCP Program); 9 C.F.R. § 500.2.
39. Butterball mandates that workers comply with its GMPs and wear PPE to comply with
Butterball’s obligations under federal law and to supply its customers with food products free of
contamination. Ex. 15, “What does HACCP, GMP’s, SSOP’s, and SPS’s stand for?”; Ex. 26,
Good Manufacturing Practices (GMP’s); Ex. 28, Brinso , S. Dep., pp. 40:8-41:11; Ex. 29,
Swan Dep. pp. 119:23-120:20 (Complex Manager, p. 10:12-10:18).
40. Hair and Beard Nets: Butterball requires workers to wear hair nets and beard nets to prevent
food contamination from hair. Hairnets and beard nets must completely cover all hair. Ex. 32 ,
Employee Orientation Slideshow at BB 011882-3, 001189 ; Ex. 26, Good Manufacturing
Practices (GMP’s); Ex. 11, Ingram Dep, pp. 148:23-149:6.
41. Water Resistant Shoes and Boots: Butterball requires Plaintiffs to wear this PPE because
footwear can be a source of transporting contamination. Ex. 26, Good Manufacturing Practices
(GMP’s); Ex. 32, Employee Orientation Slideshow at BB 011882-3, 0011891; Ex. 33, at BB
00394, PPE Procedure Footwear (“All footwear will meet OSHA Regulations 29 CFR
1910.132 and 29 CFR 1910.136 as well as the requirements for food safety.” Butterball
prohibits canvas or suede-like boot or shoe materials because the “limited ability to clean those
materials.”). Butterball’s policy requires boots to be taken off and put on at the facility. Ex. 33,
at BB 00395, PPE Procedure Footwear; Butterball 30(b)(6) Jan. 13, 2009, pp. 40:20-41:4.
Further, workers on the RTE side of the plant cannot take the boots into the break area or
cafeteria. Butterball 30(b)(6) Dep. July 28, 2010 p. 14:20-23. And they cannot the boots home.
Ex. 76, Lerch Dep., pp. 24:22-25:10. These strict standard is to prevent food contamination. Ex.
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32, Employee Orientation Slideshow at BB 011883; Ex. 3, Employee Handbook at BB 00435.
42. Smocks: Butterball requires this PPE to prevent both contamin tion and foreign objects from
getting into Butterball’s product. Ex. 32, Employee Orientation Slideshow at BB 011891. This
PPE is not allowed in the locker room area, outside of the plant, restrooms, or the cafeteria. Ex.
32, Employee Orientation Slideshow at BB 011881; Ex. 17, Butterball 30(b)(6) Jan. 13, 2010
Dep., pp. 171:18-172:11. They are required by USDA regulations. Ex. 17, Butterball 30(b)(6)
Jan. 13, 2010 Dep., p. 167:10-15.
43. Arm Guards: Butterball requires workers to wear this PPE to prevent both contamination and
foreign objects from getting into Butterball’s product. Ex. 32, Employee Orientation Slideshow
at BB 011891; Ex. 11, Ingram Dep. p. 148:14-22. This PPE is also necessary to prevent injuries
to workers and thus slowing down production and increasing labor and workers’ compensation
costs. Ex. 11, Ingram Dep., pp. 147:9-148:22.
44. Bump Caps / Hard Hats: Butterball requires some workers to wear this PPE in order to
identify workers in different positions and different departments. This PPE comes in different
colors and have different markings on them. Ex 34, Bump Cap Hard Cap Procedure at BB
00393. These marking and colors identify whether a worker is a trainee, supervisor, or trainer.
Ex. 11, Ingram Dep. pp. 149:7-151:10. Bump caps are also needed to prevent food
contamination. Ex. 32, Employee Orientation Slideshow at BB 011891; Ex 34, Bump Cap
Hard Cap Procedure at BB 00392. They are also need to prevent injuries to workers thus
slowing down production and increasing labor and workers’ compensation costs. Ex. 11,
Ingram Dep. p. 151:2-9.
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45. Plastic or Vinyl Sleeves: Butterball requires these items of PPE to both avoid biological
contamination and foreign objects from getting into Butterball’s product. Ex. 32, Employee
Orientation Slideshow at BB 011891. Some workers wear blue plastic sleeves. They are
required by the USDA. Ex. 17, Butterball 30(b)(6) Jan. 13, 2009 Dep. p. 167:10-15. Workers
are prohibited from taking them into the restroom. Ex. 17, Butterball 30(b)(6) Jan 13, 2009
Dep., p. 244:10-13.
46. Vinyl and Rubber Gloves: Butterball requires these items of PPE to prevent both
contamination and foreign objects from getting into Butterball’s product. Ex. 32, Employee
Orientation Slideshow at BB 011891; Ex. 17, Butterball 30(b)(6) Jan. 13, 2009 Dep. pp.
153:17-154:9. They are needed to prevent Blood Borne Pathogens. Ex. 35, Presentation on
Blood Borne Pathogens, pp. 3-4. They are not allowed in the locker room area, outside of the
plant, restrooms, or the cafeteria. Ex. 10, Butterball 30(b)(6) Dep., March 25, 2008, p. 209:5-
11; Ex. 17, Butterball 30(b)(6) Jan. 13, 2009, pp. 171:18-172:11.
47. Ear Protection: Butterball requires these items of PPE to prevent h aring loss. Ex. 17,
Butterball 30(b)(6) Jan. 13, 2009, p. 151:9-18. Workers are not allowed on the production floor
without ear plugs or other ear protection. Ex. 10, Butterball 30(b)(6) Dep., March 25, 2008, p.
144:11-17. Employees injured from hearing loss slow d n production and increasing labor
and workers’ compensation costs. Ex. 36, Dejesus Dep., pp. 107:6-108:6.
48. Aprons: Butterball requires these items of PPE to prevent both contamination and foreign
objects from getting into our product.” Ex. 32, Employee Orientation Slideshow at 011891; Ex.
30, Moore Dep, p. 139:4-140:7. They are not allowed in the locker room area, outside of the
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10
plant, restrooms, or the cafeteria. Ex. 17, Butterball 30(b)(6) Jan. 13, 2009, pp. 171:18-172:11.
They are required by USDA regulations. Ex. 17, Butterball 30(b)(6) Jan. 13, 2009, p. 167:10-15
49. Cut Resistant Gloves (Steel/Kevlar/Metal Mesh): To prevent contamination of turkey
products Butterball prohibits these items from enteri g the locker room area, outside of the
plant, restrooms, or the cafeteria. Ex. 17, Butterball 30(b)(6) Jan. 13, 2009, 171:18-172:11.
50. Cotton Gloves: Butterball requires these items of PPE for food safety. Ex. 37, Sill Dep., p.
118:19-20. They are needed to keep employees hands warm in the cold plant. Ex. 10, Ingram
Dep., p. 151:24-152:18. They also protect hands against cuts. Ex. 38, PPE-Hand Protection at
BB 00406-7.
51. Safety Glasses / Eye protection: Butterball requires these items of PPE to prevent co act with
foreign material and splashing of processing water nd thus reduce contamination. Ex. 39, PPE
– Eye Protection at BB 00403; Ex. 32, Employee Orientation Slideshow at BB 011891. It is
also required to prevent injury to workers’ eyes. An eye injury could require Butterball to hire
another worker and slow down production. Ex. 36, Dejesus Dep., pp. 107:6-108:6. They are
needed to prevent Blood Borne Pathogens. Ex. 35, Presentation on Blood Borne Pathogens at
p.3.
52. Coveralls: Butterball requires these items of PPE. Workers wear coveralls to prevent rashes.
Dejesus Dep., p. 27:4- 28:16.
53. Freezer coats: Butterball prohibits these items from being worn utside. And they must be
“hung on hooks, inside of distribution break areas, while eating lung or during break.” BB
00438
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54. Workers in RTE are required to tie a colored ribbon on to their PPE to the line that they work
on. Ex. 76, Lerch Dep., pp. 47:10-48:13.
55. Live hang workers wear cotton gloves to prevent callusing on their hands and injuries from the
claws of live birds. Ex. 36, Dejesus Dep., pp. 36:9-38:19.
56. Live Hang Department workers wrap their hands and sleeves with duct tape. This is to prevent
hand injuries from hanging live thrashing birds. It is also to prevent rashes from feces, dust, and
feathers from sliding down their sleeves or coming in contact with their skin. Ex. 36, Dejesus
Dep., pp. 36:9-38:19.
57. Workers understand that they must wear PPE. Plaintiffs testified that Butterball requires them
to wear PPE. See e.g., Ex. 8, Barnes Dep. pp. 31:16-33:9; Ex. 40, Boney D p., pp. 16:22-17:14,
23:13-25:9; Ex. 9, Brinson, P., Dep. p. 47:2-12; Ex. 41, Butler Dep., p. 21:19-25:4; Ex. 42,
Canongo Dep., pp. 38:19-39:22; Ex. 43, Chestnut Dep., p. 25:14-21; Ex. 44, Cummings Dep.,
p. 28:2-20, 34:20-35:2; Ex. 45, Gibbs Dep., pp. 79:20-84:3; Ex. 46, Hill Dep., pp. 31:16-33:14;
Ex. 47, Hodges Dep. p. 31:4-31:12; Ex. 48, Houston Dep., pp. 23:5-24:20, 25:18-20; Ex. 49,
McCoy Dep., pp. 26:11 to 29:17; Ex. 50, Batts-Miller Dep., pp. 56:24-58:6; Ex. 51, Morris,
Erica D., (Pages 33:3 to 38:13); Ex. 52, Peacock Dep., p. 60-64; Ex. 53, Cobb Dep., pp. 63-64;
Ex. 54, Graham Dep., pp 26, 38; Ex. 55, Hernandez-Flores Dep. p. 26; Ex. 56, James Dep., pp.
34-35; Ex. 57, Joyner Dep., p. 33; Ex. 58, Leonard Dep., p. 34; Ex. 59, Moore Dep., pp. 28-33;
Ex. 60, Rodriguez-Santiago Dep., p. 67; Ex. 61, Suggs-Meyer Dep., pp. 39:21-41:15; Ex. 62,
Thompson Dep., pp. 55-57; Ex. 63, Vega-Castro Dep., p. 34; Ex. 64, Wells Dep., pp. 21-22;
Ex. 65, Williams, Annie Dep., pp. 44-45; Ex. 66, Williams, Antonio Dep., p. 21; Ex. 67,
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Wilson Dep., pp. 30-34; Ex. 68, Zambrano Dep., p. 40; Ex. 69, Salinas Dep., pp. 27:24-30:3;
Ex. 70, Swinson, Sayda Suyapa, pp. 23:12-26:22.
58. Defendant’s supervisors testified that Butterball equires production workers to wear PPE. See
e.g. Ex. 71, Armwood Dep. pp. 39:29-40:16, 65:2-4 (superviso on the raw side Armwood
Dep., p. 8:6-9); Ex. 28, Brinson, S. Dep., pp. 40:8-41:11; Ex. 72, Sarmiento Dep., 24:12-25:8,
26:23-28:10 (Tray Pack Evening Supervisor, p. 12:3-5).
59. All workers must sign Butterball’s forms acknowledging their obligation to comply with the
Food Safety & Personal Hygiene Policy. Ex. 3, Employee Handbook at BB 00443.
60. If a worker fails to wear the required items of PPE, Butterball will not allow them on the
production floor. Cummings Dep., p. 28:2-6; Batts-Miller Dep., pp. 182:2-183:1.
61. Butterball’s Quality control employees monitor the production floor entrance to ensure workers
wear their mandatory PPE. Ex. 44, Cummings Dep., p. 28:2-6, 58:2-24; Ex. 50, Batts-Miller
Dep., pp. 182:2-183:1.
62. If a worker fails to wear PPE the worker is subject to discipline. Ex. 17, Butterball 30(b)(6) Jan.
13, 2009 pp. 244:22-245:2. This discipline can result in termination. Ex. 3, Employee
Handbook at BB 00443 (Food Safety & Personal Hygiene Policy); Ex. 17, Butterball 30(b)(6)
Jan. 13, 2009 Dep., p. 245:3-10.
63. Some PPE also protects Butterball from worker’s compensation claim by reducing injuries on
the job. Ex. 36, Dejesus Dep., pp. 107:6-108:6.
64. If a worker is injured, Butterball’s production is reduced. Ex. 36, Dejesus Dep., pp. 107:6-
108:6.
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65. Butterball requires workers to wear PPE to reduc employee turnover. Ex. 29, Swan Dep. p.
119:5-22.
Butterball Did Not Pay Production Employees for the Time That It’s Expert Measured.
66. On June 21, 2006, Butterball only paid production employees who were still employed
retroactive “plug time” of six minutes per day to partially compensate them for unpaid work
under IBP v. Alvarez going back to January 1, 2006. Doc. 455, p. 13, ¶ 45.
67. Butterball’s expert Dr. Fernandez measured discrete pre and post shift activities, including
donning, doffing, and sanitizing PPE and walking to various locations within Butterball’s
facility. Fernandez Report. Dr. Fernandez measured those discrete activities for 13 areas. Those
total measurements are contained in Exhibit 5. Ex 5, Fernandez Report, pp. 49-61.
68. Butterball’s expert calculated that workers spent 8.602 to 25.013 minutes (depending on the
area in which they worked) performing discrete donning, doffing, walking, and sanitizing
activities at the beginning and end of each shift and on breaks. Ex 5, Fernandez Report, pp. 49-
61.
69. Prior to June 5, 2006 Butterball’s Notice states that Butterball paid production workers a
minimum of $7.40 per hour. Ex. 12, Notice.
70. Prior to June 5, 2006, Butterball’s Notice states that Butterball paid live hang workers a
minimum of $9.90 per hour. Ex. 12, Notice
71. Butterball could place time clocks in a position t measure the first principal work activity and
the last. Ex. 73, Butterball 30(b)(6) Dep., Dec. 15, 2009, p.18:22-19:17, p. 30:8-31:9; Ex. 74,
Dr. Fernandez Dep., pp. 127:9-129:3, 131:11-131:21.
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III. ARGUMENT
A. Summary Judgment Standard
The Federal Rules of Civil Procedure encourage the use of summary judgment to narrow
issues for trial and eliminate matters that do not i volve genuine issues of material fact. Celotex
v. Catrett, 477 U.S. 317, 327 (1986). “Once the moving party has met its burden, the non-moving
party may not rest on the allegations or denials in its pleading, but must come forward with
specific facts showing that there is a genuine issue for trial.” Garcia v. Frog Island Seafood, Inc.,
644 F.Supp.2d 696, 703-04 (E.D.N.C. 2009) (citation and quotations omitted). The Rules provide
that a party may move for summary judgment on any part of a claim or counter claim, with or
without affidavits. Fed. R. Civ. P. 56(a). The Court may render summary judgment on liability
even where genuine issues with respect to the amount of damages remain. Fed. R. Civ. P. 56(c).
A party is entitled to summary judgment when there is no "genuine issue of material fact" and the
undisputed facts warrant judgment for the moving party s a matter of law. Id.; Anderson v.
Liberty Lobby, Inc., 477 U.S. 242 (1986).
B. Fair Labor Standard Act Principles
“The principle congressional purpose in enacting the FLSA was to protect all covered workers
from substandard wages and oppressive working hours. . . . [and to ensure that employees] would
be protected from the evil of 'overwork' as well as 'underpay.'” Barrentine v. Arkansas-Best Freight
System, Inc., et al., 450 U.S. 728, 739 (1981) (citations omitted). To pr tect against excessive hours
of work, the statute requires that employers pay employees for hours in excess of 40 in a week "at a
rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C.
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§207(a)(1).
The FLSA was designed “‘to extend the frontiers of ocial progress’ by ‘insuring to all our able-
bodied working men and women a fair day’s pay for a fair day’s work.’ ... Any exemption from
such humanitarian and remedial legislation must therefore be narrowly construed, giving due regard
to the plain meaning of statutory language and the intent of Congress. ” A.H. Phillips v. Walling,
324 U.S. 490, 493 (1945); Arnold v. Ben Kanowsky Inc., 361 U.S. 388, 392 (1960). Conversely, the
FLSA is construed broadly in favor of employees. Brock v. Richardson, 812 F.2d 121, 123 (3d
Cir.1987) (“The Fair Labor Standards Act is part of the large body of humanitarian and remedial
legislation enacted during the Great Depression, and has been liberally interpreted.”); Kelley v.
Alamo, 964 F.2d 747, 749-50 (8th Cir.1992); Mitchell v. Lublin, McGaughy & Assocs., 358 U.S.
207, 211 (1959); Haywood v. Barnes, 109 F.R.D. 568, 586 (E.D.N.C. 1986). With respect to the
specific issue in this case, see also 29 C.F.R. § 790.8 “The legislative history further indicates that
Congress intended the words ‘‘principal activities’’ to be construed liberally in the light of the
foregoing principles to include any work of consequnce performed for an employer, no matter
when the work is performed”. The Supreme Court has been required on multiple occasions to
strongly enforce the FLSA against claims by employers that they need not pay for all hours
expended by employees on the employer’s behalf.
these provisions, like the other portions of the Fair L bor Standards Act, are remedial and
humanitarian in purpose. We are not here dealing with mere chattels or articles of trade but
with the rights of those who toil, of those who sacrifice a full measure of their freedom and
talents to the use and profit of others. Those are the rights that Congress has specially
legislated to protect. Such a statute must not be interpreted or applied in a narrow, grudging
manner. Accordingly we view Sections 7(a), 3(g) and 3(j) of the Act as necessarily
indicative of a Congressional intention to guarantee either regular or overtime compensation
for all actual work or employment. To hold that an employer may validly compensate his
employees for only a fraction of the time consumed in actual labor would be inconsistent
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with the very purpose and structure of those sections of the Act.
Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597-598, (1944)(travel
down mine shafts though not “productive” is compensable work).
.To avoid summary judgment, Butterball must proffer evidence sufficient to create a "genuine
issue of material fact" that Butterball’s workers ae plainly and unmistakably paid in conformity
with the Act. Fed.R.Civ.P. 56(c); Celotex v. Catrett, 477 U.S. 317, 327 (1986); Anderson, 477 U.S.
242 (1986). This it cannot do.
C. PPE is Integral and Indispensable to Work on the Production Floor
Workers must be paid for all of the time between the first and last principal work activities,
including time spent donning and doffing, sanitizing, and traveling within Butterball’s poultry plant
under the “continuous work day” rule. IBP, Inc. v. Alvarez, 546 U.S. 21 (2005); Hosler v.
Smithfield Packing Co., Inc., 7:07-CV-166-H, Doc. 442, p. 3 (E.D.N.C. Sept. 27, 010).
The history behind this is worth noting. The history begins with the Supreme Court’s decision in
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 691-692, (1946), where the Court held that:
time spent in walking to work on the employer's premises, after the time clocks were
punched, involved ‘physical or mental exertion (whether burdensome or not) controlled or
required by the employer and pursued necessarily and primarily for the benefit of the
employer and his business.’ . . . Work of that character must be included in the statutory
workweek and compensated accordingly, regardless of contrary custom or contract.
Id. The next year, Congress legislatively overruled this aspect of the Anderson decision in enacting
the Portal to Portal Act.
Under the Portal to Portal Act, 29 U.S.C. § 254, Congress mandated the following exceptions to
compensable work:
(a) Activities not compensable
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Except as provided in subsection (b) of this section, no employer shall be subject to any
liability or punishment under the Fair Labor Standards Act . . . on account of the failure of
such employer to pay an employee minimum wages, or to pay an employee overtime
compensation, for or on account of any of the following activities of such employee . . .
(1) walking, riding, or traveling to and from the actual place of performance of the principal
activity or activities which such employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said principal activity or activities,
which occur either prior to the time on any particular workday at which such employee
commences, or subsequent to the time on any particul workday at which he ceases, such
principal activity or activities.
Shortly after Congress passed the Portal-to-Portal Act, the Department of Labor promulgated a
regulation defining "work-day" as "the period between the commencement and completion on the
same workday of an employee's principal activity or activities." 29 C.F .R. § 790.6(a), (b).
Therefore, "to the extent that activities engaged in by an employee occurs after the employee
commences to perform the first principal activity on a particular workday and before he ceases the
performance of the last principal activity on a particular workday," those activities are not excluded
from FLSA coverage by the Portal-to-Portal Act. Id.
The Supreme Court next revisited these issues in Stei er v. Mitchell, 350 U.S. 247 (1956), and
held that changing clothes and showering at a battery plant were compensable activities under the
FLSA and Portal to Portal Act. “[T]he term ‘principal activity or activities' in Section 4 [of the
Portal-to-Portal Act] embraces all activities which are an ‘integral and indispensable part of the
principal activities,’ and that the activities in question fall within this category.” Steiner, 350 U.S. at
252-253. Thus, under Steiner, activities, such as the donning and doffing of specialized protective
gear, that are “performed either before or after th regular work shift, on or off the production line,
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are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those
activities are an integral and indispensable part of the principal activities for which covered
workmen are employed and are not specifically excluded by Section 4(a)(1).” Id., at 256, 76 S.Ct.
330. The Court held that the changing of clothes and showering at issue there were principal work
activities noting that the Company “required” these activities in accordance with state law. Id., 350
U.S. at 248 and 251.
The Supreme Court reiterated its holding in Steiner when it next dealt with continuous work day
rule in IBP, Inc. v. Alvarez, 546 U.S. 21 (2005). As the Supreme Court stated in Alvarez “Other
than its express exceptions for travel to and from the location of the employee's ‘principal activity,’
and for activities that are preliminary or postliminary to that principal activity, the Portal-to-Portal
Act does not purport to change this Court's earlier descriptions of the terms ‘work’ and ‘workweek,’
or to define the term ‘workday’.” Id., 546 U.S. at 28. Thus, if any activities are integral and
indispensable to the first principal work activity then they too are compensable and begin the
continuous work day. Id..1 The key event to determine the start of the workday is what is the first
principal work activity, including the first associated integral and indispensable activity that relates
to it. 29 C.F.R. § 790.8(b). Further, consistent with the underlying principles for interpreting the
FLSA, Congress meant the term activities to be construed broadly. 29 C.F.R. § 790.8(a).
This case presents the question of what is the first and last principal work activities.2 Steiner v.
1 Even though the Portal to Portal Act amended the FLSA and does not require employers to pay
for time that is preliminary or postliminary to employees’ first principal work activity, the term
“principal activity” is to be construed broadly. 29C.F.R. § 790.8; IBP, Inc. v. Alvarez, 546 U.S.
21, 25 (2005); 29 U.S.C. § 254(a).
2 “As noted above, in Steiner, we made it clear that§ 4 of the Portal-to-Portal Act does not
remove activities which are “ ‘integral and indispensable’ ” to “ ‘principal activities' ” from
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Mitchell 350 U.S. 247, 254 (U.S. 1956), looked to two points to determine if changing clothes and
showering are principal work activities under the Portal to Portal Act, 1) whether the activities are
“integral” to the job and 2) whether they are “indispensable” to the job. “[T]he Senate intended the
activities of changing clothes and showering to be within the protection of the Act if they are an
integral part of and are essential to the principal activities of the employees.” Steiner v. Mitchell 350
U.S. 247, 254, 76 S.Ct. 330, 334 (U.S. 1956). IBP v. Alvarez, reaffirmed the Steiner test for those
activities “integral and indispensable” to a principal work activity. Alvarez, 546 U.S. at 33-4.
“Accepting the necessary import of our holding in Steiner, we conclude that the locker rooms where
the special safety gear is donned and doffed are the relevant “place of performance” of the principal
activity that the employee was employed to perform within the meaning of § 4(a)(1).” Id., at 34. As
the Department of Labor’s regulation states:
Among the activities included as an integral part of a principal activity are those closely
related activities which are indispensable to its performance. If an employee in a chemical
plant, for example, cannot perform his principal activities without putting on certain
clothes,65
fn65 Such a situation may exist where the changing of clothes on the employer's
premises is required by law, by rules of the employer, or by the nature of the work.
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 his
principal activities, it would be considered as a ‘‘preliminary’’ or ‘‘postliminary’’ activity
rather than a principal part of the activity.”
29 C.F.R. § 790.8(c)(some footnotes omitted).
Here there can be no doubt that donning the PPE within the locker and staging areas are both
integral and essential to the job. The PPE is not “merely a convenience to the employee.” Id The
FLSA coverage precisely because such activities are themselves “principal activities.” IBP, Inc.
v. Alvarez, 546 U.S. at 33.
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Plaintiffs’ work cannot be done without PPE – indee it would be illegal to work without it. And
Butterball requires Plaintiffs to wear PPE to do their job or they will be sent off the production floor
and possibly fired. These items of PPE are not items that Plaintiffs would wear at home to go about
their private activities – these are items one wears in a turkey processing plant to effectively do ones
job. The government and Butterball require it.
Some courts also break out a related factor, asking whether an activity is done for the benefit
of the employer. Perez v. Mountaire Farms, Inc., 610 F.Supp.2d 499, 517 (D.Md. 2009) citing
Alvarez v. IBP, Inc., 399 F.3d 894, 902-03 (9th Cir. 2003). See, e.g., Hosler v. Smithfield Packing
Co., Case No. 7:07-CV-166-H, Doc. 426 (E.D.N.C. M&R filed August 31, 2010); Parker v.
Smithfield Packing Co., Case No. 7:07-CV-176-H, Doc. 281 (E.D.N.C. M&R filed August 31,
2010); Anderson v. Perdue Farms, Inc., 604 F.Supp.2d 1339, 1354-56 (M.D.Ala. 2009)(11th
Circuit test is “(1) whether the activity is required by the employer, (2) whether the activity is
necessary for the employee to perform his or her duties, and (3) whether the activity primarily
benefits the employer.”) Integral and indispensable would appear to subsume and incorporate “for
the benefit of the employer.” If something is integral and indispensable to the employer’s job, then
it is hard to imagine how doing it would not be forthe benefit of the employer.
Under these factors, Plaintiffs’ donning of PPE is integral and indispensible. The activity is
clearly necessary to the work – indeed, it is mandatory and the work cannot be done without it. It is
also done for the benefit of the employer – the government will not allow Butterball to operate
without requiring employees to wear PPE. Thus, withou enforcing this requirement, Butterball
would not be in business. Clearly PPE benefits Butterball under any of tests of integral and
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21
indispensable.
1. Butterball Requires Workers to Wear PPE to Perform Their Job Duties
Activities that workers must perform in order to perform their job duties are compensable
principal work activities. 29 C.F.R. § 790.8(a). Asthe Supreme Court held in Tennessee Coal,
Iron & R. Co. v. Muscoda Local No. 123, 21 U.S. 590, 599 (1944):
The extraction of ore from these mines by its very nature necessitates dangerous travel in
petitioners' underground shafts in order to reach the working faces, where production
actually occurs. Such hazardous travel is thus essential to petitioners' production. It
matters not that such travel is, in a strict sense, a non-productive benefit. Nothing in the
statute or in reason demands that every moment of an employee's time devoted to the
service of his employer shall be directly productive. Section 3(j) of the Act expressly
provides that it is sufficient if an employee is engaged in a process or occupation
necessary to production. Hence employees engaged in such necessary but not directly
productive activities as watching and guarding a building, waiting for work, and standing
by on call have been held to be engaged in work necessary to production and entitled to
the benefits of the Act. Iron ore miners travelling underground are no less engaged in a
‘process or occupation’ necessary to actual production.
Id.
Donning and doffing of PPE is both integral and indispensable to a principal work activity
when it is required by the employer’s policy or to keep the employer’s product clean. See, P rez
v. Mountaire Farms, Inc., 610 F.Supp.2d 499, 517 (D.Md. 2009) Hoyt v. Ellsworth Cooperative
Creamery, 07-CV-386-JCS, 2008 WL 3828583, 3 (W.D.Wisc. 2008) (hairnets and hardhats
required by employer because of customers' demands and compliance with state law); Wage and
Hour Division Opinion Letter, U.S. DOL, 2001 WL 58864 (Jan 15, 2001) (“An employer must
compensate its employees for any activity that is an integral and indispensable part of the
employee's principal activities, including the putting on, taking off and cleaning of personal
protective equipment, clothing or gear that is required by law, by rules of the employer or by the
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22
nature of the work.”); Ex. 75, Wage and Hour Advisory Memorandum No. 2006-2 (May 31,
2006) (“like donning, obtaining the gear (as opposed to waiting to obtain the gear) ‘is always
essential if the worker is to do his job,’ the compensable day starts once the employee has
obtained the gear required to be stored on the premises by taking items out of a bin, a locker or
another designated storage area.”). Here, Butterball’s employment policies require workers to
wear PPE. These policies are to prevent food contami ation, Butterball’s exposure to workmen’s
compensation claims, increase production efficiency, and compliance with federal regulations.
Butterball prohibits workers from performing his or her duties on the production floor when they
who do not have their PPE on. For example, Butterball qu lity assurance employees monitor the
door to the production floor and prohibit workers from entering the production area if they do not
have their required PPE on. And the consequences of failing to comply with Butterball’s PPE
requirement can result in termination.
Even if the employer does not per se require the PPE, the PPE may still necessary for the
employee to perform his or her job. See, Perez v. Mountaire Farms, Inc., 610 F.Supp.2d 499, 517
(D.Md. 2009). For example, Butterball provides workers with cotton gloves, duct tape, and paper
towels to perform their job duties. See Ex. 25, Videotape of Live Hang Department. Workers are
provided with cotton gloves to insulate their hands from the cold temperature. Otherwise their
hands will stiffen up and they will slow down production. Live hang workers wear cotton gloves
to prevent callusing on their hands and injuries from the claws of live birds. Ex. 36, Dejesus
Dep., pp. 36:9-38:19. Some workers wrap their hands sleeves with duct tape. This is to
prevent hand injuries from hanging live thrashing birds. It is also to prevent rashes from feces,
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23
dust, and feathers from sliding down their sleeves or coming in contact with their skin. Ex. 36,
Dejesus Dep., pp. 36:9-38:19.
2. Workers Wear PPE for Butterball’s Benefit
Additional proof that the PPE is integral and indispensible is established because Butterball
requires workers to wear the protective gear for Butterball’s benefit. Federal regulations require
Butterball to implement and enforce the use of PPE to prevent food contamination. PPE secondarily
prevents workers from injuries, but this also reduces Butterball’s liability and increases production
efficiency. Further, compliance with federal regulations is necessary to avoid civil and criminal
liability and injunctive measures against the company. And finally, Butterball benefits from
workers wearing bump caps because markings on the caps are used to identify different positions
from a distance within the sprawling plant.
Butterball requires its workers to wear PPE in order to comply with its obligations under the
law. Failure to comply with FDA, USDA, and OSHA stand rds exposes Butterball to civil and
criminal liability and injunctive relief. 21 U.S.C. § 461 (FDA civil penalties for adulterated
products); 29 U.S.C. § 662 (OSHA injunctive relief); 29 U.SC. § 666 (OSHA civil and criminal
penalties). Failure to comply with sanitary standards may force government regulators to slow
down or stop production. 9 C.F.R. § 500.2. Thus, Butterball profits and benefits from complying
with the law.
Prevention of bacterial outbreaks and contamination is e of Butterball’s primary goals, as its
obligation to customers is not just to provide turkey products, but to provide safe and healthy turkey
products. The consequence of failing to provide uncontaminated turkey products and sanitary
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24
working conditions is dire. For example, turkey products containing Listeriosis can potentially kill
consumers. Drayton v. Pilgrim’s Pride Corp., 472 F.Supp.2d 638 (E.D.Pa. 2006). Thus, federal
regulations require Butterball to take measures to prevent bacterial outbreaks and contamination.
See, 9 C.F.R. § 430.4 (Control of Listeria monocytogenes in post-lethality exposed ready-to-eat
products). Further, recalling contaminated turkey products and litigation can costs hundreds of
millions of dollar. See, Drayton v. Pilgrim’s Pride Corp., 472 F.Supp.2d 638 (E.D.Pa. 2006)
(Pilgrim’s Pride required to recall 27.4 million pounds of turkey products because of Listeriosis
outbreak).
Both FDA and USDA regulations require poultry processing plants to establish food safety
standards to prevent food contamination. 21 C.F.R. § 110.10 (FDA); 9 C.F.R. § 416.12 (USDA); 9
C.F.R. § 416.5 (Employee hygiene). The FDA and USDA standards are designed to protect
consumers from contaminated products. If the products are adulterated or the conditions are
unsanitary, then the USDA could retain products, stop or slow down a line, or refuse to allow the
processing of a product. 9 C.F.R. § 500.2. These enforcement actions reduce production and thus
negatively impact profits. Here, Butterball has implemented Good Manufacturing Practices (GMPs)
that requires workers to wear PPE in compliance with FDA and USDA regulations. Thus,
Butterball’s GMPs prevent the production of adultera d products and an unsanitary production
facility. Perez, 610 F.Supp.2d at 518; Franklin v. Kellogg Co., ---F.3d ----, 2010 WL 3396843, *12
(6th Cir. 2010) (donning and doffing uniforms and equipment primarily benefits Kellogg because
the uniform and equipment ensures sanitary working conditions and untainted products)
Each piece of PPE that workers wear prevents food cntamination. See, Helmert v. Butterball,
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LLC, No. 4:08CV00342 JLH, 2009 WL 5066759 (E.D.Ark. Dec. 15, 2009) (“Much of the donning
and doffing at Butterball's turkey processing plants i Ozark and Huntsville is essential to
Butterball's ability to provide uncontaminated food products”). Without PPE, Butterball risks
contaminating its turkey products from foreign unsanitary substances such as hair, open wounds,
contact with outside substances such as clothing, bathroom and street filth and other substances. 21
C.F.R. § 110.10 (FDA); 9 C.F.R. § 416.12 (USDA). Butterball’s GMPs require workers to wear
hairnets, beard nets, smocks, aprons, gloves, earplugs, safety glasses, plastic sleeves, hard hats, and
approved footwear. BB 00392 (hardhat); BB 00394 (footwear). Workers that use sharp objects,
such as a knives, must wear Kevlar gloves, steel mesh gloves, and arm guards to prevent cuts to
themselves and to avoid exposing their turkey products to workers’ blood.
Butterball also requires workers to wear PPE in order to comply with OSHA regulations.
Compliance with OSHA is also for Butterball’s benefit. In passing OSHA, Congress stated
“personal injuries and illnesses arising out of work situations impose a substantial burden upon, and
are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses,
and disability compensation payments.” 29 USC § 653. While Butterball will likely argue that PPE
protects employees, it undoubtedly primarily benefits Butterball by enabling it to operate in its
regulatory environment. Steiner, supra. “Though it is perhaps the case that the frocks provide a
benefit to the plaintiffs, that does not alter the fact that the reason the defendants require their
employees to wear frocks is motivated not by the employees' needs, but rather by the defendants'
need to maintain a sanitary production floor.” Jordan v. IBP, Inc., 542 F.Supp.2d 790, 807,
(M.D.Tenn. 2008) It further benefits Butterball by reducing various costs such as workers
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compensation for work related injuries, it reduces turnover and the need to recruit and train new
employees, and increases production. [need cites] By reducing injuries, Butterball is more
profitable. New and injured employees reduce Butterball’s production efficiency. Less efficiency
results in less sales and less profits for the company. Thus, it is in Butterball’s best interest to
protect job related injuries to its employees.
Butterball also requires its workers to wear bump ca s so that Butterball can identify different
types of workers at a distance. Bump caps come in different colors and have different markings on
them. These marking and colors identify whether a workers is a Team Leader, Supervisor, or a New
Associate. BB 00393. Thus, Butterball is able to easily identify which employee to contact in a busy
crowded plant in case the person or position is needed. Different colored ribbons are also used on
smocks in the Ready to Eat portion of the plant for he same identification purposes. Ex. 76, Lerch
Dep., pp. 47:10-48:13.
Donning and doffing protective gear is done “necessarily and primarily” for the employer's
benefit in the context of meat processing. Alvarez v. IBP, 339 F.3d at 903. (“It is beyond cavil that
the donning, doffing, washing, and retrieving of protective gear is, at both broad and basic levels,
done for the benefit of IBP.”) The Court followed the same reasoning in Ballaris v. Wacker
Siltronic Corp., 370 F.3d 901 (9th Cir. 2004), holding that donning a d doffing uniforms at a
silicon chip manufacturing plant was done primarily for the benefit of the employer because the
uniforms “were required to limit potential cleanroom contamination, and thereby to assist the
employer is ensuring the quality of the silicon chips manufactured at the plant.” Ballaris, 370 F.3d
at 911. See also Perez v. Mountaire Farms, Inc. 601 F.Supp.2d 670, 680 (D.Md.2009); Jordan et
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al. v. IBP, Inc., 542 F.Supp.2d 790, 807 (M.D.Tenn.2008). In Tennessee Coal, Iron & R. Co. v.
Muscoda Local No. 123, 321 U.S. at 599, the Supreme Court found that an employer primarily
benefitted from the unproductive time workers spent traveling down mine shafts in order to be able
to do the employer’s work. In Steiner, supra, the Supreme Court found that changing clothes and
showering at the plant were compensable principal work activities that primarily benefited the
employer, when state law required the employer to requi e these activities. 350 U.S. at 248 and 251.
Here, federal law requires the donning and doffing of PPE for Butterball to be able to operate.
Plaintiffs’ donning and doffing of PPE accordingly benefits Butterball and requires that these
activities be considered a principal work activity.
3. The Fact That Some Workers Put On Boots or Bumpcaps Before Arriving Does Not
Mean that Other Workers Donning PPE At The Plant Are Not Engaged In A
Principal Work Activity.
Most Butterball production workers put on and take off their PPE in the locker rooms
Butterball provides for that use at the start and e of their shifts and during each break. At the
beginning and end of each shift workers must put on their smocks in the area just outside of the
production floor. And workers on the RTE side are required to put on and take their rubber boots
at the plant at the start and end of their shifts and during breaks. During breaks workers must
remove their smocks, boots on RTE, vinyl and rubber gloves, aprons, and cut resistant gloves, in
order to go outside, use the restroom, enter the cafeteria, or go to their locker.
Even if a few workers take some PPE home (Butterball is not paying anyway), that does not
exclude the donning of PPE in the company provided locker rooms from being integral and
indispensable to a principal work activity, under the Supreme Court’s tests in Steiner and
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Alvarez. See Anderson v. Perdue Farms, Inc., 604 F.Supp.2d 1339, 1354-56 (M.D.Ala.
2009)(rejecting view of DOL expressed in May 31, 2006 Wage and Hour Advisory
Memorandum No. 2006-2, and citing cases) The PPE is still 1) integral to the work, and 2)
indispensable to the work. And the activity benefits Butterball. Steiner, supra, and Alvarez, supra
Furthermore, donning of PPE after the first principal work activity is compensable under the
continuous workday rule. 29 C.F.R. § 790.6(b). Butterball assigns workers a locker to store their
PPE and thus, does not expect or require workers to don and doff their PPE at home. Perez v.
Mountaire Farms, Inc., 610 F.Supp.2d 499, 519 (D.Md. 2009) (“If changing at home were a
bona fide option, there would be no real need for employee lockers or for Defendants to incur the
costs of installing them”).
Butterball may argue that the May 31, 2006 Wage and Hour Advisory Memorandum No.
2006-2 in which the then acting Administrator of the Wage and Hour Division advises Wage and
Hour staff of his personal view that “donning and doffing of required gear is within the
continuous workday only when the employer or the nature of the job mandates that it take place
on the employer’s premises.” Butterball will likely argue that this Advisory Memorandum
insulates employers from having to compensate workers for donning and doffing on premises, if
it merely permits some employees to don or doff the PPE at home. This Memorandum is not a
document entitled to deference by this Court and it utterly fails to persuade since it conflicts with
the tests for principal work activities set forth in Steiner and Alvarez.3 Indeed, in Alvarez, the
3 This memorandum is not a regulation, or an official interpretation of the FLSA by DOL and it
is not entitled to deference because it clearly conflicts with the tests for principal work activities
set forth in Steiner and Alvarez. Nor is the memo entitle to deference under Auer v. Robbins, 519
U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)). Auer stands only for the principle that
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Supreme Court reiterated that “under Steiner, activities, such as the donning and doffing of
specialized protective gear, that are ‘performed either before or after the regular work shift, on or
off the production line, are compensable under the portal-to-portal provisi ns of the Fair Labor
Standards Act if those activities are an integral and indispensable part of the principal activities
for which covered workmen are employed and are not specifically excluded by Section 4(a)(1)’.”
Alvarez., 546 U.S. at 21. Furthermore, even though the workers in Alvarez did not universally
don their PPE in the locker room,4 the Court held that the donning of PPE in the locker room
triggered the continuous work day. “Accepting the necessary import of our holding in Steiner, we
conclude that the locker rooms where the special safety gear is donned and doffed are the
relevant “place of performance” of the principal activity that the employee was employed to
perform within the meaning of § 4(a)(1).” Alvarez, 546 U.S. at 34. The Court did not in any way
say that the employer must strictly require employees to don or doff in the locker room to make it
the “relevant place of performance.” Nor did the Court hold that if some donned elsewhere, that
would permit the employer to avoid starting the continuous work day, even for those workers
who used the company provided locker room for its in ended purpose.
What Alvarez does suggest, is the commonsense notion that workers who don or doff PPE at
Courts defer to an agency's interpretation of its own ambiguous regulation. Here, the memo
purports to interpret the Supreme Court Alvarez decision and it plainly applies criteria that were
nowhere mentioned in that decision and which conflict with the principals set forth therein.
4 “All production workers in both divisions must wear outer garments, hardhats, hairnets,
earplugs, gloves, sleeves, aprons, leggings, and boots. Many of them, particularly those who use
knives, must also wear a variety of protective equipment for their hands, **522 arms, torsos, and
legs; this gear includes chain link metal aprons, ve ts, plexiglass armguards, and special gloves.
IBP requires its employees to store their equipment and tools in company locker rooms,
where most of them don their protective gear.” Alvarez, 546 U.S. at 30 (emph. added).
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home, do not thereby extend the start or end of their continuous work day all the way to their
homes. Such a rule would permit workers to unfairly evade the Portal to Portal Act’s prohibition
on claiming as work routine travel to and from work from home, just by putting on or taking off
an article at home.5 Plaintiffs in this case do not claim that they must be paid for any isolated
events of donning of PPE at home or travel to work from home. However, the fact that a
Plaintiff, might in some instances put on an article of PPE at home, does not make the integral
and indispensable tasks of donning and doffing PPE on the defendant’s premises non-
compensable. Alvarez, supra.
4. Butterball Must Pay For All Time Spent Donning PPE From The First Principal
Work Activity, Notwithstanding Whether the PPE Is Deemed Unique or Non-
Unique.
Butterball contends that donning or doffing of “non-u ique” equipment is not compensable.
Butterball labels boots, hair nets, ear plugs, smock, gloves, bump caps, safety glasses as non-
unique gear. Butterball 30(b)(6) Dep. Lenaghan, Gary J nuary 14, 2010, p. 143:11-12.
Butterball’s believes that putting on and taking off this required PPE is effortless and therefore
non-compensable. However, this argument flies in the face of the continuous workday rule. And
5The Portal to Portal Act, 29 U.S.C. § 254(a) states,
(a) Activities not compensable
Except as provided in subsection (b) of this section, no employer shall be subject to any liability
or punishment under the Fair Labor Standards Act of 1938, … on account of the failure of such
employer to pay an employee minimum wages, or to pay an employee overtime compensation,
for or on account of any of the following activities of such employee …
(1) walking, riding, or traveling to and from the actual place of performance of the
principal activity or activities which such employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said principal activity or
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Butterball’s argument is contrary to DOL regulations, and has been repeatedly rejected by this
court and courts throughout the country.
Under the continuous workday rule, there is no distinction between unique and non-unique
PPE. In a case against Butterball’s minority owner, this Court has refused to accept the same
position Butterball advances here. In a meat packing case this Court held that if donning and
doffing “non-unique” PPE is integral and indispensable to plaintiffs’ work then it is compensable
under the continuous workday rule. Hosler v. Smithfield Packing Co., Inc., 7:07-CV-166-H, Doc.
442, p. 4 (E.D.N.C. Sept. 27, 2010) . The U.S. DOL does not draw a line between unique and
non-unique gear. The U.S. DOL has explicitly stated that “whether required gear is “unique” or
“non-unique” is irrelevant to whether donning and doffing is a principal activity.” Ex. 75, Wage
and Hour Advisory Memorandum No. 2006-2 (May 31, 2006).
Similarly, Courts throughout the country have rejected this unique/non-unique distinction.
The poultry industry, and virtually all of Butterball’s competitors, are required to pay workers
under the continuous workday rule. And courts have rep atedly rejected the poultry industry’s
attempts to escape payment for putting on and taking off PPE. See, De Asencio v. Tyson Foods,
Inc., 500 F.3d 361, 373 (3d Cir. 2007) (After trial court granted found in favor of workers at a
chicken processing plant that they perform work under the FLSA when they don and doff PPE,
including as safety glasses, earplugs, boots, smocks, and hairnets); Jordan v. IBP, Inc., 542
F.Supp.2d 790, 809 (MD.Tenn. 2008) (Granting employees summary judgment motion that
workers at a beef and pork processing plant perform co pensable work when they don and doff
frocks); Garcia v. Tyson Foods, Inc., 474 F.Supp.2d 1240, 1247 (D.Kan.2007) (Court reject d
activities
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beef processor’s summary judgment arguments that donning and doffing “standard protective
equipment” is not work); Lopez v. Tyson Foods, No. 8:06CV459, 2007 WL 1291101, at 3-4
(D.Neb. March 20, 2007) (Granting employees summary judgment motion denying beef
processor’s motion for summary judgment that donning a d doffing non-unique gear is not
compensable); Fox v. Tyson Foods, Inc., No. 99CV01612, 2002 WL 32987224, at *10 (N.D.Ala.
Feb. 4, 2002) (on summary judgment court found that donning and doffing of sanitary and PPE is
“work” under the FLSA); Spoerle v. Kraft Foods Global, Inc., 527 F.Supp.2d 860, 864
(W.D.Wis.2007) (employees in meat processing performed integral and indispensable activities
when they donned and doffed PPE because in part workers were subject to discipline if they
failed to don equipment); Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692-692 (1946)
(Workers who donned aprons and overalls, removed shirts, taped or greased arms, putt on finger
cots, prepared the equipment for productive work, turned on switches for lights and machinery,
opened windows and assembled and sharpening tools did so for employer’s benefit); Mitchell v.
King Packing Co., 350 U.S. 260 (1956)(pre and post shift knife sharpening activities are an
integral part of and indispensable to the various butchering activities); Johnson v. Koch Foods,
Inc., 670 F.Supp.2d 657, 669 (E.D.Tenn. 2009) (Court denied chicken processor summary
judgment as to whether donning and doffing PPE was integral and indispensible). Similarly
courts reject non-meat or poultry processing plant employers arguments that donning and doffing
PPE is not compensable. Lee v. Am-Pro Protective Agency, Inc., 860 F.Supp. 325 (E.D.Va. 1994)
(court denied the security guard company summary judgment because it found evidence that the
employees’ uniforms benefited the employer and that t e uniforms were necessary to the
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employees’ performance of the guards’ principal activity); see also McDonald v. Kellogg Co., ---
F.Supp.2d ---, 2010 WL 3724649, * 16 (D.Kan. Sept. 16, 2010)(donning and doffing uniforms,
hair nets, beard guards, ear plugs and safety glasses are for the bakery’s benefit because they
ensure that the employer is able to produce and sell uncontaminated food products) vac’d on
grounds that the parties agreed not to address this issue, 2010 WL 4386899 (D.Kan. Oct. 29,
2010).
Further, Butterball and Butterball’s minority owner – Smithfield -- have, had this distinction
rejected in both the Eastern District of Arkansas and Eastern District of North Carolina. Parker v.
Smithfield, 7:07-cv-00176-BO, Doc. 234 (E.D.N.C. Jan. 15, 2010); Lewis v. Smithfield Packing
Company, Inc, 7:07-CV-166-H, Doc. 442 (E.D.N.C. Sept. 27, 2010); Helmert v. Butterball, LLC,
No. 4:08CV00342 JLH, 2009 WL 5066759, *11 (E.D.Ark. Dec. 15, 2009). Butterball is estopped
from arguing that donning of “non-unique” PPE is not a principal work activity. See, Clark v.
Wells Fargo Financial, Inc., 2008 WL 4787444, 3 (M.D.N.C. Oct. 30 2008).
D. Butterball’s De Minimis Defense Pre-January 2005 Is Without Merit.
Plaintiffs are entitled to summary judgment on Butterball’s de minimis defense for all
production employees working prior to January 2006 and for production workers who were
terminated between January 1 and June 21, 2006. Before June 21, 2006, Butterball only paid
workers for the time the production line was schedul to run; it did not pay workers for any
continuous workday rule (CWDR) time spent between the first principal work activity and the
last principal work activity. It did not recognize any obligation to pay for donning or doffing time
or any other pre- or post- shift work. On June 21, 2006, Butterball paid production employees
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who were still employed retroactive “plug time” of six minutes per day to partially compensate
them for unpaid work under IBP v. Alvarez and it did so retroactively for those employees still
employed, going back to January 1, 2006.6
Plaintiffs expect to demonstrate the amount of uncompensated time through Butterball’s
punch detail history (Kronos time clock records) and Plaintiffs testimony. Butterball’s expert,
Jeffrey Fernandez, measured how long it took workers to perform discrete donning and doffing
activities and Butterball will argue that these observations constitute the amount of
uncompensated work its production employees worked. An although Plaintiffs testimony will
show that the uncompensated work significantly exceds that found by Fernandez, the precise
amount of work is a disputed issue of fact.
Butterball has raised a de minimis defense, claiming that the amount it shorted workers under
6 Butterball did not pay any of the employees “liquidated damages” under the FLSA or NCWHA
for the late payment of the plug time. Whenever payments due under the FLSA are not made on
the regular pay date they must be paid, liquidated damages are mandatory. The law does not
leave the determination as to when overtime or minium wages must be paid to the employer.
See, e.g., Calderon v. Witvoet, 999 F.2d 1101, 1107 (7th Cir.1993) (the FLSA requires an
employer to pay “on time”); U.S. v. Klinghoffer Bros. Realty Corp., 285 F.2d 487, 491 (2d
Cir.1960) (an employer is not relieved of liability for FLSA violations by making late payment
after the original payment becomes due); s e also Atlantic Co. v. Broughton, 146 F.2d 480, 482
(5th Cir.1944) (failure to pay the full amount of minimum wages and overtime on “any regular
payment date” immediately creates the obligation to pay the difference between the wages paid
and the wages due, plus an equal “amount as liquidated damages....”); Rogers v. City of Troy,
N.Y., 148 F.3d 52, 61 (2d Cir. 1998); Brooks v. Vill. of Ridgefield Park, 185 F.3d 130, 135-36
(3d Cir. 1999)(if employers could determine when to make FLSA payment employees remedies
under the act would be vitiated).; 29 C.F.R. § 778.106 (overtime).
Similarly, the NCWHA requires that “Every employer shall pay every employee all wages and
tips accruing to the employee on the regular payday. NCWHA § 95-25.6. Liquidated damages are
due under the NCWHA for wages withheld beyond the regular payday. NCWHA § 95-25.22(a1).
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the FLSA is too small to bother recording or paying. However, even taking Butterball’s
measurements as valid (and Plaintiffs expect to prove at trial that the uncompensated time is
significantly greater than that calculated by the Defendant) the time it took workers to perform
unpaid compensable activities pre and post shift was far from de minimis and Butterball’s de
minimis defense must fail. The defense fails a matter of law because the amount of
uncompensated time for the pre and post shift compensable activities is, according to Butterball’s
expert, measurable, substantial, and regular.
Under the de minimis doctrine, courts “treat theoretically compensable work as
noncompensable under the FLSA when the amount of such work is negligible.” Brock v. City of
Cincinnati, 236 F.3d 793, 804 (6th Cir.2001) (citing Anderson v. Mt. Clemens Pottery Co., 328
U.S. 680 (1946)). Therefore, “when [ ] 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 the Fair Labor Standards Act.” Aiken v. City of Memphis,
190 F.3d 753, 758 (6th Cir.1999) (quoting Mt. Clemens Pottery, 328 U.S. at 692).
There is no bright-line rule for when an amount of w rk constitutes “split-second absurdity”
for which an employer is relieved of its duty to pay. Factors that are analyzed include: (1) the
practical administrative difficulty of recording the additional time, (2) the aggregate amount of
compensable time, and (3) the regularity of the additional work. Lindow v. U.S., 738 F.2d 1057,
1063 (9th Cir.1984). At this point there can be no claim of administrative difficulty in recording
the additional time, since at a minimum, Butterball’s expert has already done this work.7
7 Any claim of administrative difficulty would ring hollow. Apart from the time study it
performed to defend this litigation, here, Butterball h s already admitted that there is no inherent
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The Department of Labor has issued an interpretive regulation concerning the de minimis
defense:
In recording working time under the Act, insubstanti l or insignificant periods of time
beyond the scheduled working hours, which cannot as a practical administrative matter be
precisely recorded for payroll purposes, may be disregarded. The courts have held that
such trifles are de minimis. (Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946))
This rule applies only where there are uncertain and indefinite periods of time involved of
a few seconds or minutes duration, and where the failure to count such time is due to
considerations justified by industrial realities. An employer may not arbitrarily fail to
count as hours worked any part, however small, of the employee's fixed or regular working
time or practically ascertainable period of time he is regularly required to spend on duties
assigned to him. See Glenn L. Martin Nebraska Co. v. Culkin, 197 F. 2d 981, 987 (C.A. 8,
1952), cert. denied, 344 U.S. 866 (1952), rehearing denied, 344 U.S. 888 (1952), holding
that working time amounting to $1 of additional compensation a week is “not a trivial
matter to a workingman,” and was not de minimis; Addison v. Huron Stevedoring Corp.,
204 F. 2d 88, 95 (C.A. 2, 1953), cert. denied 346 U.S. 877, holding that “To disregard
workweeks for which less than a dollar is due will produce capricious and unfair results.”
Hawkins v. E. I. du Pont de Nemours & Co., 12 W.H. Cases 448, 27 Labor Cases, para.
69,094 (E.D. Va., 1955), holding that 10 minutes a day is not de minimis.
29 CFR § 785.47. Here, Butterball cannot claim refug in the de minimis defense because the
amount of time for which defendant seeks to evade payment is not insubstantial and the time can
be precisely recorded.
1. Taking Butterball’s Expert’s Testimony As Correct, Butterball Recorded The
Uncompensated Time
Butterball cannot present evidence that the amount f time for which Plaintiff seeks
compensation is too small to be recorded for payroll purposes. See, Perez v. Mountaire Farms,
difficulty in placing time clocks in a position to measure the first principal work activity and the
last. Wells, Dec. 15, 2009 Dep p.18:22-19:17, p. 30:8-31:9. Butterball’s expert Fernandez also
confirmed that placing time clocks in proper position to measure first and last PWAs can be
done. Butterball Expert Dep., pp. 127:9-129:3, p. 131: 1-131:21. And Butterball itself performed
time studies prior to granting 6 minutes per day of plug time to its active employees in June 2006
retroactive to January 1, 2006. Ex. 49
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Inc., 610 F.Supp.2d 499, (D.Md. 2009)(court relied on experts for the amount of uncompensated
time thus there was no administrative difficulty); Lindow at 1063 (stating that employers “must
compensate employees for even small amounts of time unless that time is so miniscule that it
cannot, as an administrative matter, be recorded for payroll purposes”); Kasten v. Saint-Gobain
Performance Plastics Corp., 556 F.Supp.2d 954 (W.D.Wis.2008) (rejecting employer's request
for summary judgment on de minimis defense and holding, as a matter of law, that donning time
was not de minimis where employer conceded that it would not be administratively difficult to
record donning time); Saunders v. John Morrell & Co., No. C88-4143, 1992 WL 531674, *2
(N.D.Iowa Oct. 14, 1992)8 (“The Court is not persuaded that Morrell cannot calculate the amount
of time its employees spend cleaning safety equipment in this day of technology”); see also 29
C.F.R. § 785.47 (“An employer may not arbitrarily fail to count as hours worked any part,
however small, of the employee’s fixed or regular working time or practically ascertainable time
he is regularly required to spend on duties assigned to him”.).
Here, taking the facts most favorable to Butterball, and for purposes of this motion, not
contesting that Butterball’s expert took inaccurately and improperly stringent measures of the
uncompensated under the continuous workday rule,9 Butterball’s expert measured the amount of
time it took workers to perform each donning and doffing activity, walk to various locations, and
wait in line. See Ex. 5, Fernandez Report, p. 49-61. Butterball’s payroll department would not
have an administrative difficulty making these back payments. Indeed, in June 2006, Butterball
8 John Morrell & Company is a Smithfield Company. Ex 77,
. (last accessed November 18, 2010)
9 See, Plaintiffs’ Motion In Limine To Preclude The Expert Report and Testimony of Dr.
Fernandez.
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paid current employees six minutes back pay for each shift they worked from January through
May 2006 to compensate for unpaid donning and doffing. Thus, presently Butterball would not
have difficultly paying workers for this uncompensated time under the Fernandez formula.
2. According to Butterball’s Expert, The Amount of Unpaid Compensable Time Is
Substantial
Even according to Butterball’s expert, Plaintiffs’ aggregate claims are substantial. For the
time period prior to January 2006, Butterball’s exprt calculated that workers spend 8.602 to
25.013 minutes (depending on the department in which t ey worked) performing discrete
donning, doffing, walking, and sanitizing activities at the beginning and end of each shift.10
Fernandez Report, p. 49-61. On a weekly basis this ranged from approximately $10.64 to $23.14
of underpayments. Dunn Dec. ¶ 80. Collectively, Butterball failed to pay workers approximately
$695,960.57 from May 11, 200511 to December 31, 2005, which amounts to a substantial sum for
these low wage workers.12 Dunn Dec. ¶ 81; See Landaas v. Canister Co., 188 F.2d 768, 771 (3d
Cir.1951) (finding that employees' claims for $21.67 to $256.88 over a period of three years was
not de minimis); Addison v. Huron Stevedoring Corp., 204 F.2d 88, 95 (2d Cir. 1953)
(underpaying workers one dollar per week is not de minimis); Lindow, 738 F.2d at 1063 (noting
that courts “have applied the d minimis rule in relation to the total sum or claim involved in the
litigation”); Reich v. Monfort, Inc., 144 F.3d 1329, 1333 (10th Cir. 1998) (8.5 minutes was not de
10 Because the parties dispute the amount of time Plaintiffs don and doff PPE, sanitizing, and
walking, Plaintiffs only seek summary judgment based on Butterball’s own conservative
calculations of the time worked. Plaintiffs reserve th factual dispute for trial.
11 This is two years prior to filing the class action complaint.
12 Plaintiffs’ claims are still substantial if the court finds that donning and doffing only unique
PPE is compensable. For example, workers are shorted $4.51 to $15.03 per five day work week,
and collectively they were underpaid by approximately $348,013.74 from approximately May 11,
Case 5:07-cv-00174-H Document 477 Filed 11/19/10 Page 44 of 47
39
minimis for meat processing plant employees. “[T]he aggregate for an individual, if looked at
over the period of two to three years, was significant. It is also appropriate to consider an
aggregate based on the total number of workers.”) (citations omitted); DOL's Wage and Hour
Advisory Memorandum No.2006-2, dated May 31, 2006 (the aggregate time must be looked at to
determine if de minimis defense applies); Perez v. Mountaire Farms, Inc., 610 F.Supp.2d 499
(D.Md. 2009) (class aggregate claims were substantial); Saunders v. John Morrell & Co., No.
C88-4143, 1992 WL 531674, *2 (N.D.Iowa Oct. 14, 1992). Workers’ claims are even greater
when liquidated damages are added. Thus, there is no dispute that the aggregate value of
Plaintiffs’ claims is substantial.
Courts have denied numerous employers’ de minimis defense for time less than that sought
here. Butterball’s position in this litigation is that any uncompensated work less than 10 minutes
is de minimis. Doc. 455, p. 10, ¶ 32. However, courts throughout the country have rejected that
position. See, Collins v. Sanderson Farms, Inc., 568 F. Supp.2d 714, 724 (E.D. La. 2008) (“The
Court is highly doubtful that four to eight minutes donning and doffing …each workday, could
appropriately be considered “e minimis” without an additional showing that there is a significant
administrative burden on the employer to count such time”); Kasten, 556 F. Supp. 2d at 954
(“even accepting defendant’s estimate of 4.117 minutes to 4.755 minutes spent donning, doffing
and walking, the amount of time does not fall under th de minimis exception”); Spoerle, 527 F.
Supp. 2d at 868 (recognizing the arbitrariness of designating 10 minutes as the d minimis
threshold and stating that “even if the total time at issue is only a few minutes, this would not
necessarily mean that the time was not compensable”); Thrower v. Peach County, Georgia, Bd.
2005 until December 31, 2005. Dunn Dec. ¶ 81.
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Of Educ., 5:08-CV-176 (MTT), 2010 WL 4536997 (M.D.Ga. Nov. 2, 2010) (rejecting employers
summary judgment argument that 10 a day is de minimis); Lindow, 738 F.2d at 1062; see also
Reich v. IBP, Inc., 38 F.3d 1123, 1126 (10th Cir.1994) (“[P]revious decisions indicate that as
little as ten minutes of working time goes beyond the level of de minimis and triggers the
FLSA.”). Thus, even under Dr. Fernandez’s inaccurate c lculations13, Plaintiffs’ claims are not
de minimis.
3. Butterball Requires Uncompensated Work On A Daily Basis
Butterball mandated uncompensated donning and doffing PPE, walking, and sanitizing
during each worker’s shift up through June 21, 2006. See, infra – donning and doffing PPE
section. For workers within the limitation period who were not paid plug time, the amounts due
(even under the minimal calculation of Jeffrey Fernandez) are clearly not de minimis.
IV. CONCLUSION
For the reasons set forth above, the Plaintiffs’ Motion for Partial Summary Judgment should be
granted in its entirety.
This the 19th day of November 2010.
/s/ Robert J. Willis
Law Office of Robert J. Willis
P.O. Box 1269
Raleigh, NC 27602
Tel: (919)821-9031
Fax: (919)821-1763
Email: rwillis@rjwillis-law.com
NC Bar No.: 10730
Dan Getman
Matthew Dunn
GETMAN & SWEENEY, PLLC
9 Paradies Lane
New Paltz, NY 12561
Tel: (845) 255-9370
Fax: (845) 255-8649
Email: dgetman@getmansweeney.com
Email: mdunn@getmansweeney.com
13 See, Plaintiffs’ Motion In Limine to Strike Report and Testimony of Jeffrey Fernandez.
Case 5:07-cv-00174-H Document 477 Filed 11/19/10 Page 46 of 47
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CERTIFICATE OF SERVICE
I hereby certify that on November 19, 2010 I electronically filed the foregoing with the
Clerk of Court using the CM/ECF system which will send notification of such filing to the
following: Melissa R. Davis, L. Dale Owens, Stephen X. Munger, Robert Capobianco, Eric
Magnus, Todd Van Dyke, and Joel T. Alexander.
This the 19th day of November 2010.
/s/Robert J. Willis
Attorney for Plaintiffs
P.O. Box 1269
Raleigh, NC 27602
Telephone: (919)821-9031
Fax: (919)821-1763
E-mail: rwillis@rjwillis-law.com
NC Bar No: 10730
Case 5:07-cv-00174-H Document 477 Filed 11/19/10 Page 47 of 47
