Seventh Circuit Rejects En Banc Request in Donning and Doffing Case

Charles W. Miller & Associates

The Seventh Circuit declined to rehear the issue of whether employees should be paid for donning and doffing their clothing. In contrast to another Seventh Circuit case involving the issue, eventually decided by the U.S. Supreme Court, this case involved food processors of JCG Industries and Koch Foods. The more recent case involved a class-action lawsuit by JCG and Koch employees who worked shifts that were 8.5 hours long. They claimed that, as part of their work schedule, they were required to clock in 15 minutes before the start of their shifts in order to don their work clothing. In addition, they were required to remove their clothing before lunch, which was 30 minutes of unpaid time. Because of the time required to don and doff, the employees claimed that they never had a full lunch break and should have been paid overtime for the extra time spent donning and doffing.

However, the Seventh Circuit panel disagreed, prompting the employees to file an appeal for the case to be heard en banc, or by all of the Seventh Circuit judges. In a 6-4 decision, a majority of judges denied a rehearing. They supported the panel’s finding that, rather than a continuous workday, as defined by the Fair Labor Standards Act (FLSA), the lunch break represented the end of the first of two four-hour shifts. The employees, therefore, were not entitled to overtime pay.

The panel claimed that the Department of Labor’s definition of a continuous workday did not apply in this case, which presented a “compelling reason to recognize an exception.”

The majority’s opinion was sharply at odds with that of the dissent, who claimed that the majority allowed the FLSA doctrine for the “continuous workday” to be redefined. The panel provided just minimal analysis of the FLSA, in a break with the Supreme Court precedent, and misapplied the federal rule for summary judgment. Furthermore, the dissent claimed that employers, employees, and district courts were now likely to be confused over when a workday was continuous or not. The dissenters favored a rehearing en banc in order to clarify the issue.

One reason the majority gave for denying a rehearing was that the petition contained several errors. The main arguments in the petition also had not been made in the district court or before the Seventh Circuit panel, creating an “ambush” element. Finally, the majority rejected the dissent’s call for the case to be heard before a jury, claiming that each person could take widely different amounts of time to don and doff clothing.

Much like the other donning and doffing case, this seems like one destined to eventually be decided by the U.S. Supreme Court.

Charles W. Miller & Associates is an Indiana and Kentucky plaintiffs law firm serving residents of Kentucky and Indiana. Located in Louisville, Kentucky, the firm provides representation in the areas of personal injury and employment law. If you need a Kentucky or Indiana labor law attorney, contact us today for a free consultation.

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