Kyla Asbury Jun. 4, 2014, 5:33pm

The Seventh Circuit Court of Appeals has denied a petition for a rehearing en banc by the plaintiffs in a class action suit against JCG Industries and Koch Foods that alleges they should have been compensated for time spent changing during lunch breaks.

Rochelle Mitchell and Audrey Veasley were employed by JCG and Koch as poultry processors in Chicago and were required to clock-in to work 15 minutes prior to the start of their shifts to don the required protective work clothing, according to the May 28 order.

The plaintiffs were also required to remove the protective clothing before going to lunch, which was 30 minutes and unpaid. They claimed it took 10 to 15 minutes to put on and take of off their protective clothing, which cut into their meal time.

Chicago's federal court granted summary judgment to the defendant and in March, a split panel of the Seventh Circuit affirmed that ruling, spurring the plaintiffs to request a rehearing en banc, a relatively rare procedure in which all of the court's active judges, as opposed to just a panel of three, rehears a case.

The majority of the court that denied the rehearing petition was made up of Judges Richard A. Posner, Joel M. Flaum, Frank H. Easterbrook, Michael S. Kanne, Diane S. Sykes and John Daniel Tinder.

Judges Ann Claire Williams, Diane P. Wood, Ilana Diamond Rovner and David F. Hamilton dissented, saying that would have granted a rehearing en banc.

Williams wrote for the dissenting judges and Posner wrote an opinion concurring with the majority's decision.

Posner, Wood and Tinder served on the three-judge panel that handed down the March ruling. Posner wrote the majority opinion back then and Wood wrote the dissent.

On  behalf of the judges who dissented from the rehearing request, Williams said “This is an important case with far-reaching implications for, among others, workers who are being paid minimum wage or close to it."

“(T)his case should have been heard en banc because the majority opinion calls into question the application of the ‘continuous workday’ doctrine of the Fair Labor Standards Act, erroneously applies de minimis analysis to the FLSA in contravention of Supreme Court precedent, and improperly applies the summary judgment standard under Federal Rule of Civil Procedure 56.”

Williams added, “Applying reasoning that I believe contravenes the plain language of both the FLSA and the Department of Labor’s definition, the majority finds that the employees of the chicken processing plant work not one eight-hour day, but two four-hour workdays broken up by a thirty-minute lunch break.”

Under the majority’s approach, the dissenting judges said that any time spent doffing clothes during the start of the lunch break is actually at the end of the first four-hour workday, and any time donning clothes at the end of the lunch break is actually at the beginning of the employees’ second four-hour workday, and so the donning and doffing during the mid-day lunch break is subject to the collective bargaining agreement.

“The day can be broken up that way, the majority states, because the employees have an unpaid lunch break and that non-compensable period must act as a break between the first workday and the second workday,” the dissent states.

The lawsuit was first filed in Cook Circuit Court on Sept. 27, 2010, and was removed to Chicago's federal court on Oct. 25, 2010.

The plaintiffs, who worked 8.5-hour shifts that included a 30-minute unpaid meal break, claimed they worked from the time a bell sounded and the production line started until it stopped at the end of the scheduled shift.

Instead of requiring employees to swipe in and out for meal breaks, the defendants automatically deducted 30 minutes for meal breaks.

The plaintiffs claimed they regularly worked more than 40 hours per week without proper overtime compensation by working before the start of their shifts, through unpaid meal breaks, and after their scheduled shifts.

“The Department of Labor’s ‘general’ definition of a continuous workday does not apply here, the majority continues, because this case presents a ‘compelling reason to recognize an exception’ to the continuous workday doctrine, namely that there are actually two four-hour workdays,” the dissent states.

Going forward, district courts, employers and employees are likely to be confused as to when a day is continuous and when it is not, the dissenting judges claim.

Williams explained, “When is a seemingly eight-hour workday actually two four-hour workdays, or four two-hour workdays, or eight one-hour workdays? What makes this case the ‘exception’ to the ‘general’ definition, but another case not the ‘exception’? This ‘exception’ is likely to create confusion in both the administration of law…and the collective bargaining process.”

By explicitly rejecting the appellant’s affidavit and accepting the employer’s time estimation, the dissent asserts the majority ignored the evidence in the light most favorable to the employees and therefore did not conduct the proper Rule 56 analysis.

“In the light most favorable to Appellant, how long it took to don and doff was an issue of fact that should have been decided by a jury," Williams wrote for the dissent.

In Posner's opinion concurring with the majority's rehearing denial,  he noted that while published opinions dissenting from denials of rehearings en banc are rare, published opinions concurring in denials of rehearing en banc like his own "are virtually unheard of."

“But, this case merits such an opinion in view of assertions and omissions in the opinion dissenting from the denial of re-hearing en banc that relate both to the appropriateness of the case for rehearing by the full court and to the grounds of the panel’s decision,” he wrote.

The panel assigned to this case ruled that the changing time did not have to be compensated, Posner wrote, explaining that the full court declined by a split vote to hear the case en banc, precipitating the dissenting opinion that is the focus of his opinion.

“It should go without saying that mere disagreement with a decision by a panel of the court is not a sufficient ground for re-hearing en banc,” Posner wrote. “Otherwise every case in which the panel was divided could provoke a petition for re-hearing en banc and a call by the dissenting judge for a vote on whether to re-hear the case en banc.”

Posner said the plaintiffs' petition for rehearing is "sloppy."

“Apart from numerous mistakes… the main arguments in the petition were made neither in the district court, nor in this court when the case was briefed and argued to the panel,” Posner wrote. “So there is an ambush element.

“I am puzzled, finally, by the dissent’s remark that ‘how long it took to don and doff was an issue of fact that should have been decided by a jury.’ My puzzle is: how is such a fact to be determined by a jury? Suppose one worker testifies… that it takes 10 to 15 minutes to don and doff, and another… testifies it takes 2 minutes. How is a jury to decide between them?”

Posner wrote that the most accurate way to resolve the dispute would be, on the model of the criticized experiment by court staff, to videotape workers doffing and donning.

“The problem is that the workers aligned with the plaintiffs would dawdle, and the workers aligned with management would practice doffing and donning until they broke the speed record,” he states.

“What would the jury do? This is somewhat to the side of the issue of the case, but illustrates the important point that determining facts in a litigation can be devilishly difficult if one thinks accuracy important.”

This story was first published on Legal Newsline.

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