2016 WI 13

SUPREME COURT OF WISCONSIN

CASE NO.: 2014AP1880

COMPLETE TITLE: United Food & Commercial Workers Union, Local 

1473, Dennis 

A. Warne, Charles R. Seeley and Pamela Collins,

 Plaintiffs-Respondents,

 v.

Hormel Foods Corporation,

 Defendant-Appellant.

ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED: March 1, 2016

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: October 5, 2015

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Rock

JUDGE: Michael R. Fitzpatrick

JUSTICES:

CONCUR & DISSENT: ROGGENSACK, C.J., PROSSER, J., concur and 

dissent. (Opinion Filed)

DISSENTED: Gableman, Ziegler, J.J., dissent. (Opinion 

Filed)

NOT PARTICIPATING: R.G. Bradley, J., did not participate. 

ATTORNEYS:

For the defendant-appellant, there were briefs by Thomas P. 

Krukowski and Whyte Hirschboeck Dudek, S.C., Milwaukee, and oral 

argument by Thomas P. Krukowski.

For the plaintiffs-respondents, there was a brief by Mark 

A. Sweet and Sweet and Associates, LLC, Milwaukee, and oral 

argument by Mark A. Sweet.
2016 WI 13

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2014AP1880

(L.C. No. 2010CV2595)

STATE OF WISCONSIN : IN SUPREME COURT

United Food & Commercial Workers Union, Local 

1473, Dennis A. Warne, Charles R. Seeley and 

Pamela Collins,

 Plaintiffs-Respondents,

 v.

Hormel Foods Corporation,

 Defendant-Appellant.

FILED

MAR 1, 2016

Diane M. Fremgen

Clerk of Supreme Court

APPEAL from a judgment and order of the Circuit Court for 

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

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

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

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

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

 

1 Dennis A. Warne, Charles R. Seeley, and Pamela Collins 

join as plaintiffs. We refer only to the Union as the plaintiff 

for simplicity.
No. 2014AP1880 

2

plaintiffs, against Hormel Foods Corporation, the defendant. 

The court of appeals certified the appeal to this court pursuant 

to Wis. Stat. § 809.61 (2013-14).2 

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

Employees seek compensation for time spent putting on 

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

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

located in Beloit, Wisconsin. 

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

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

Hormel violated Wisconsin wage and hour laws by failing to pay 

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

off the required clothing and equipment. Because the time spent 

putting on and taking off the required clothing and equipment is 

not included in the employees' compensation, the Union asserts 

that the employees are working more than 40 hours per week 

without being paid overtime. 

¶4 The certification presents two questions:

(1) Is the donning and doffing of the companyrequired clothing and equipment compensable work 

time or non-compensable preliminary and 

 

2 All subsequent references to the Wisconsin statutes are to 

the 2013-14 version unless otherwise indicated.
No. 2014AP1880 

3

postliminary activities under Wis. Admin. Code 

§ DWD 272.12(2)(e) (Feb. 2009)3; and 

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

otherwise compensable work time, is this time 

non-compensable under the doctrine of de minimis 

non curat lex? 

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

comprehensive decision holding in favor of the Union and 

requiring Hormel to compensate its employees for time spent 

donning and doffing the required clothing and equipment at the 

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

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

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

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

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

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

¶6 Based on these conclusions, the circuit court awarded 

the class monetary damages of $195,087.30 broken down as 

follows: (1) $180,087.30 in unpaid wages for 5.7 minutes per 

day spent donning and doffing the required clothing and 

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

$15,000 in damages for unpaid meal periods. 

¶7 We conclude: 

 

3 All subsequent references to the Wisconsin Administrative 

Code are to the February 2009 register date unless otherwise 

noted.
No. 2014AP1880 

4

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

to compensate its employees for the 5.7 minutes 

per day spent donning and doffing the clothing and 

equipment at the beginning and end of the day. 

Relying on the Tyson Foods case, Weissman v. Tyson 

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

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

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

the employees' donning and doffing clothing and 

equipment at the beginning and end of the day 

brought Hormel into compliance with federal food 

and safety regulations and was integral and 

indispensable to sanitation and safety in the 

employees' principal work activities, namely food 

production.4

(2) The donning and doffing of clothing and equipment 

at the beginning and end of the day does not fall 

within the doctrine of de minimis non curat lex. 

The wages involved are not a "trifle" either for 

the employees or for Hormel.

 

4 The court granted review in the Tyson Foods case. See

Weissman v. Tyson Prepared Foods, Inc., 2013 WI App 109, 350 

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

Wis. 2d 351, 842 N.W.2d 359. The review was dismissed prior to 

argument or a decision by this court, however, when the parties 

settled the litigation. 
No. 2014AP1880 

5

¶8 We also briefly address whether the time spent donning 

and doffing Hormel's required clothing and equipment during meal 

periods is considered compensable work time.

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

wrongly decided and "puts state law at odds with federal 

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

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

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

Tyson Foods. We conclude that the discussion in Tyson Foods

relating to compensating its employees for time spent donning 

and doffing the required clothing and equipment at the plant at 

the beginning and end of the day does not contravene Integrity 

Staffing.

I

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

court also made numerous findings of fact following a bench 

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

erroneous. Here are the relevant facts. 

¶11 The class consists of approximately 330 persons who 

are or were hourly employees of Hormel at the Beloit canning 

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

employees."

¶12 Hormel is a multi-national food company incorporated 

in Delaware and headquartered in Austin, Minnesota. The Union 

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

a history of producing good, safe food for customers around the 

world.
No. 2014AP1880 

6

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

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

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

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

product can be stored almost indefinitely and without 

refrigeration. 

¶14 The Beloit canning facility operates like an assembly 

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

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

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

one-half of the plant. 

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

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

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

is moved to areas designated for pickup to ship to distribution 

centers or retailers.

¶16 Regulations promulgated by the United States 

Department of Agriculture (USDA), the United States Food and 

Drug Administration (FDA), and the federal Occupational Safety 

and Health Administration (OSHA) govern Hormel's production 

facilities. Products containing meat are regulated by the 

United States Department of Agriculture Food Safety Inspection 

Service. Products not containing meat are regulated by the 

United States Food and Drug Administration. The federal 

Occupational Safety and Health Administration regulates 

workplace safety. 
No. 2014AP1880 

7

¶17 Federal regulations require Hormel to meet standards 

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

For example, the federal regulations require that persons 

working with food protect against contamination of food by 

maintaining hygienic practices like washing hands and wearing 

clean outer garments. While the federal regulations set forth 

performance standards, they generally do not require these 

standards be satisfied in any particular manner. 

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

performance standards, maintain sanitation, and protect 

employees and consumers. The Work Rules require that employees 

wear certain clothing and equipment. If employees do not wear 

the required clothing and equipment, the employees are subject 

to discipline, up to discharge. 

¶19 Specifically, Hormel's Work Rules require employees 

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

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

a hair net. Employees are to wear clean and sanitary footwear 

at all times.5 Clothing is provided by Hormel and must be 

changed daily or more often (as good sanitation practices 

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

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

them, and drops off clean clothes.

 

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

"captive shoes."
No. 2014AP1880 

8

¶20 Hormel does not compensate employees for time spent 

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

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

¶21 The parties stipulated that the median time for 

donning and doffing the required clothing and equipment at the 

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

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

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

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

before the scheduled start of their shift. The employees must 

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

 

6 This stipulation includes not just the time spent donning 

and doffing the required clothing and equipment, but also time 

spent washing hands and walking to and from workstations. 

Nonetheless, under Wis. Admin. Code § DWD 272.12(1)(a)2., the 

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

particular workday at which such employee commences their 

principal activity or activities' and 'the time on any

particular workday at which they cease such principal activity 

or activities.'" 

Because we hold that donning and doffing the required 

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

integral and indispensable to the employees' principal work 

activity of food preparation, the donning and doffing is itself 

a principal work activity. See IBP, Inc. v. Alvarez, 546 U.S. 

21, 37 (2005) ("[W]e hold that any activity that is 'integral 

and indispensable' to a 'principal activity' is itself a 

'principal activity . . . .'"). As a result, the time spent 

walking to or from workstations or washing hands occurs after 

the employees' "workday" begins and is thus compensable. See

IBP, 546 U.S. at 37 ("Moreover, during a continuous workday, any 

walking time that occurs after the beginning of the employee's 

first principal activity and before the end of the employee's 

last principal activity is . . . covered by the FLSA."). 
No. 2014AP1880 

9

workstations at their assigned start times or they will be 

considered tardy. The employees are paid by Hormel beginning at 

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

in. 

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

spent putting on their clothing and equipment before the 

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

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

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

and equipment before leaving the facility and don their clothing 

and equipment before returning to work. 

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

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

and change back into their street clothes.

¶25 The employees are paid until they officially "swipe 

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

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

the employees are not paid for the time spent taking off their 

clothing and equipment after they swipe out.

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

measured from the scheduled commencement of the shift to the 

swipe out at the electronic clock after release by the 

supervisor less 30 minutes for the employees' meal period.

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

credible evidence, that putting on and taking off the clothing 

and equipment required by Hormel at the beginning and end of the 

day is integral and indispensable to the performance of the 
No. 2014AP1880 

10

employees' principal activities. According to the circuit 

court, a close connection exists between the donning and 

doffing; compliance with the federal regulations of the United 

States Department of Agriculture, the Food and Drug 

Administration, and Occupational Safety and Health 

Administration; and the employees' principal activities, 

producing canned food. 

II

¶28 The standard of review applicable to the instant case 

is oft stated and is as follows: 

¶29 This court will not overturn factual findings of the 

circuit court unless the findings are clearly erroneous. 

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

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

¶30 The appeal revolves around the interpretation and 

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

administrative regulations the court uses the same rules of 

interpretation as it applies to statutes. Wis. DOR v. Menasha 

Corp., 2008 WI 88, ¶45, 311 Wis. 2d 579, 754 N.W.2d 95. 

Interpretation and application of a regulation is ordinarily a 

question of law that this court determines independently of the 

circuit court or court of appeals, but benefiting from the 

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

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

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

first to the text. Each word shall be interpreted so as to give 

it meaning, and none shall be treated as superfluous. See In re 
No. 2014AP1880 

11

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

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

interpreting the regulation are also considered. 

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

that an activity is integral and indispensable to the employees' 

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

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

factual findings of the circuit court unless the findings are 

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

question is one of law, this court decides the question 

independently while benefiting from the analyses of the circuit 

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

Brown, 298 Wis. 2d 37, ¶18. 

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

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

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

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

principal activities (as distinguished from preliminary or 

postliminary to those activities), is a question of fact to be 

determined from all the circumstances."7

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

and the interpretation and application of the regulations to 

undisputed facts is a question of law that the court decides 

independently of the circuit court or court of appeals. 

 

7 See Laurie E. Leader, Wages and Hours: Law & Practice

§ 6.03[7], at 6-30 (2015). 
No. 2014AP1880 

12

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

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

circuit court reached the correct decision.8

III

¶36 We examine first whether the time spent donning and 

doffing Hormel's required clothing and equipment at the 

beginning and end of the day is considered compensable work time 

or non-compensable preliminary and postliminary activities under 

Wis. Admin. Code § DWD 272.12(2)(e). 

¶37 The Department of Workforce Development regulations 

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

Code § DWD 272.12. 

 

8 In the circuit court, the parties also disagreed about the 

burden of proof. The Union argued that it would have the burden 

of proof to demonstrate that the acts at issue are "work," and 

the burden would then shift to Hormel to demonstrate that the 

acts are noncompensable. Hormel disagreed with the Union's 

description of the burden of proof, although Hormel agreed that 

it had the burden of proof on the application of the de minimis

doctrine. 

The circuit court stated that the (undefined) burdens of 

proof were on the respective parties by the greater weight of 

the credible evidence. The circuit court viewed Hormel as 

having the burden of proof on the application of the de minimis

doctrine. 

In this court, neither party raises the issue of the 

allocation of the burdens of proof. As a result, we do not 

address the issue. See State v. Gracia, 2013 WI 15, ¶28 n.13, 

345 Wis. 2d 488, 826 N.W.2d 87 (stating "we do not usually 

address undeveloped arguments"). Regardless of the allocation 

of the burdens of proof, we conclude the circuit court's 

decision was correct. 
No. 2014AP1880 

13

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

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

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

and pursued necessarily and primarily for the benefit of the 

employer's business.'"9 

¶39 The parties agree that the donning and doffing are 

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

pursued necessarily and primarily for the benefit of Hormel's 

business. 

¶40 Compensable time is defined in the regulations in 

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

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

particular workday at which such employee commences their 

principal activity or activities' and 'the time on any 

particular workday at which they cease such principal activity 

or activities.'"10

 

9 Wisconsin Admin. Code § DWD 272.12, titled "Interpretation 

of hours worked," states in (1)(a)1.: 

(1) Principles for determination of hours worked. (a) 

General requirements of sections. 1. Employees subject 

to the statutes must be paid for all time spent in 

"physical or mental exertion (whether burdensome or 

not) controlled or required by the employer and 

pursued necessarily and primarily for the benefit of 

the employer's business." The workweek ordinarily 

includes "all time during which an employee is 

necessarily required to be on the employer's premises, 

on duty or at a prescribed work place."

10 Wisconsin Admin. Code § DWD 272.12(1)(a)2. states: 

(continued)
No. 2014AP1880 

14

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

"principal activity or activities" of the employee. 

¶42 "[P]rincipal activities" is defined in Wis. Admin. 

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

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

"Among the activities included as an integral part of the 

principal activity are those closely related activities which 

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

integral part of a principal activity includes activities that 

are closely related to the principal activity and indispensable 

to its performance.12 

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

by an integral part of a principal activity" justifying 

compensation for an employee. The third example relates to a 

chemical plant worker who dons and doffs clothing and equipment. 

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

 

'Workday,' in general, means the period between 'the 

time on any particular workday at which such employee 

commences their principal activity or activities' and 

'the time on any particular workday at which they 

cease such principal activity or activities.' The 

'workday' may thus be longer than the employee's 

scheduled shift, hours, tour of duty, or time on the 

production line. Also, its duration may vary from day 

to day depending upon when the employee commences or 

ceases their 'principal' activities (emphasis added). 

11 See Wis. Admin. Code § DWD 272.12(2)(e)c. (emphasis 

added). 

12 See Tyson Foods, 350 Wis. 2d 380, ¶26.
No. 2014AP1880 

15

is therefore most helpful in deciding the instant case. Here 

are the three examples in the regulations:

a. In connection with the operation of a lathe, an 

employee will frequently, at the commencement of their 

workday, oil, grease, or clean their machine, or 

install a new cutting tool. Such activities are an 

integral part of the principal activity, and are 

included within such term.

b. In the case of a garment worker in a textile mill, 

who is required to report 30 minutes before other 

employees report to commence their principal 

activities, and who during such 30 minutes distributes 

clothing or parts of clothing at the workbenches of 

other employees and gets machines in readiness for 

operation by other employees, such activities are 

among the principal activities of such employee. Such 

preparatory activities are compensable under this 

chapter.

c. Among the activities included as an integral part 

of the principal activity are those closely related 

activities which are indispensable to its performance.

If an employee in a chemical plant, for example, 

cannot perform their principal activities without 

putting on certain clothes, changing clothes on the 

employer's premises at the beginning and end of the 

workday would be an integral part of the employee's 

principal activity. On the other hand, if changing 

clothes is merely a convenience to the employee and 

not directly related to their principal activities, it 

would be considered as a "preliminary" or 

"postliminary" activity rather than a principal part 

of the activity. However, activities such as checking 

in and out and waiting in line to do so would not 
No. 2014AP1880 

16

ordinarily be regarded as integral parts of the 

principal activity or activities.13 

¶44 To determine whether the Hormel-required donning and 

doffing are merely incidental preparatory and concluding 

activities or are integral and indispensable to the employees' 

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

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

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

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

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

case. 

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

processing plant in Jefferson County, Wisconsin, operated by 

Tyson Prepared Foods, Inc. Tyson Foods required its employees 

to put on sanitary clothing and equipment before they began 

 

13 This Wisconsin regulation is substantially similar to 

federal regulations addressing the phrase "principal activity or 

activities." Compare Wis. Admin. Code § DWD 272.12(2)(e) with

29 C.F.R. § 785.24 and 29 C.F.R. § 790.8(b)-(c). Specifically, 

the federal regulations provide the exact same three examples 

that § DWD 272.12(2)(e) provides to clarify when an activity is

an "integral part of a principal activity" for which employees 

must receive compensation. 

The history and purposes of the Fair Labor Standards Act, 

federal regulations, Wisconsin law and regulations, and case law 

interpreting the statutes and regulations are set forth at 

length in prior cases and need not be repeated here. See, e.g., 

Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513, 516-

18 (2014); Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 875-76 

(2014); Tyson Foods, 350 Wis. 2d 380, passim. 
No. 2014AP1880 

17

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

end of their shifts.14

¶46 The clothing and equipment involved in Tyson Foods are

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

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

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

"captive shoes."15

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

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

determined that Tyson Foods controlled the employees' clothing 

and equipment and that requiring employees to put on and take 

off the required clothing and equipment primarily benefited the 

employer.16 Although the court of appeals viewed this initial 

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

dispositive.17 

¶48 The Tyson Foods court of appeals then turned its 

inquiry to whether the period of contested compensation is 

included as a "principal activity," as distinguished from 

 

14 Tyson Foods, 350 Wis. 2d 380, ¶4. 

15 Tyson Foods, 350 Wis. 2d 380, ¶4.

16 The court of appeals concluded that the donning and 

doffing activities were required and controlled by Tyson Foods 

and primarily benefited the employer, satisfying the initial 

inquiry. Tyson Foods, 350 Wis. 2d 380, ¶¶17, 22.

17 Tyson Foods, 350 Wis. 2d 380, ¶¶17, 23.
No. 2014AP1880 

18

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

§ DWD 272.12(2)(e).18

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

donning and doffing are compensable because they are integral 

and indispensable to the principal work activities of the 

employees in manufacturing food. 

¶50 The court of appeals in Tyson Foods relied primarily 

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

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

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

entitled to compensation for time spent to don and doff 

protective clothing and equipment at the employer's premises. 

¶51 Comparing the chemical plant employees and the Tyson 

Foods employees, the court of appeals determined that the 

chemical plant example in the regulations is analogous to the 

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

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

safety laws, rules of the employer, and the nature of the work 

all require the employees to change clothes to do their 

respective jobs in the chemical plant and at the Tyson Foods 

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

serious dispute that Tyson Foods required employees to don most 

 

18 Tyson Foods, 350 Wis. 2d 380, ¶23.

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

20 Tyson Foods, 350 Wis. 2d 380, ¶32. 
No. 2014AP1880 

19

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

operate more efficiently, and to limit Tyson Foods' liability 

for and costs associated with employees' injuries.21 

¶53 Although Tyson Foods gave short shrift to the 

undisputed fact that its employees were required to don most of 

the clothing and equipment to protect the meat-consuming public 

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

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

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

appeals, "needing to avoid food contamination plainly adds to 

the indispensability of the donning and doffing."23

¶54 The court of appeals concluded that donning and 

doffing clothes and equipment in the Tyson Foods case was 

indispensable for the safety of the employees and the safety of 

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

doffing was compensable.

¶55 The Tyson Foods case presents essentially the same 

fact situation as presented in the instant case. 

¶56 Both Tyson Foods and Hormel operate food processing 

plants in Wisconsin subject to the same Wisconsin laws. The 

clothing and equipment requirements for employees of each 

 

21 Tyson Foods, 350 Wis. 2d 380, ¶28. 

22 Tyson Foods, 350 Wis. 2d 380, ¶4.

23 Tyson Foods, 350 Wis. 2d 380, ¶36.

24 Tyson Foods, 350 Wis. 2d 380, ¶31. 
No. 2014AP1880 

20

company are essentially the same. Likewise, the clothing and 

equipment requirements for employees of each company serve 

essentially the same purposes: the safety of the employees and 

the safety of the food they help produce. 

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

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

¶58 The Corporate Manager of Regulatory Compliance at 

Hormel testified that because Hormel's process is regulated both 

by the Food and Drug Administration and United States Department 

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

manner to prevent product alteration or the general creation of 

unsanitary type conditions." 

¶59 When asked whether Hormel's clothing and equipment 

requirements were to comply with federal regulations, the 

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

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

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

required donning and doffing of the sanitary company clothing 

and equipment at the Beloit facility is a "means to an end," 

complying with the federal regulations regarding food sanitation 

and workplace safety. 

¶60 Although several Hormel employees testified that they 

could do their assigned job function at Hormel without the aid 

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

required proper sanitation standards and protective equipment to 

meet the federal regulations. Cleanliness and food safety are 

"intrinsic element[s]" of preparing and canning food at the 
No. 2014AP1880 

21

Hormel canning facility. The clothing and equipment is integral 

and indispensable to the performance to the employees' job 

function (principal work activity) of preparing canned food. 

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

¶61 Hypothetically the Hormel employees may be able to do 

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

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

tight connection between the donning and doffing and the 

principal activities of the employees. 

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

and equipment requirements at the beginning and end of the day 

are integral and indispensable to the employees' principal work 

activities. Putting on and taking off the required clothing and 

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

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

production——and cannot be eliminated altogether without 

degrading the sanitation of the food or the safety of the 

employees.

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

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

change clothing and wear equipment to ensure food and employee 

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

requirement of putting on and taking off clothing and equipment 

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

employees' principal activity. 

¶64 Hormel dismisses Tyson Foods, contending that the 

Tyson Foods case "puts state law at odds with federal authority, 
No. 2014AP1880 

22

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

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

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

Tyson Foods. 

¶65 Integrity Staffing does not conflict with Tyson Foods. 

Because the Wisconsin administrative regulations at issue here 

are substantially similar to federal regulations, federal cases 

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

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

N.W.2d 225 (1995). 

¶66 In Integrity Staffing, one of the federal regulations 

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

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

substantially similar to the chemical plant example in the 

Wisconsin regulations.25

¶67 The employees in Integrity Staffing worked in a 

warehouse retrieving products from shelves and packaging the 

products for delivery to Amazon.com customers.26 Integrity 

Staffing's employees were required to undergo antitheft security 

screening before leaving the warehouse each day.27 The question 

presented to the United States Supreme Court was whether the 

employees' time spent waiting to undergo and then undergoing the 

 

25 See 29 C.F.R. § 790.8(c). 

26 Integrity Staffing, 135 S. Ct. at 515. 

27 Integrity Staffing, 135 S. Ct. at 515. 
No. 2014AP1880 

23

security screenings was compensable under the Fair Labor 

Standards Act. 

¶68 The federal court of appeals upheld the employees' 

claim for compensation viewing the screenings as an integral and 

indispensable part of the principal activity the employees were 

employed to perform; the court viewed the screenings as 

necessary to the employees' primary work as warehouse employees 

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

Supreme Court reversed the federal court of appeals.

¶69 Applying federal regulations substantially similar to 

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

"an activity is integral and indispensable to the principal 

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

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

intrinsic element of those activities and one with which the 

employee cannot dispense if he is to perform his principal 

activities."29 According to the Integrity Staffing Court, 

because the employer-required screenings were not tied to the 

productive work the employees were employed to perform——

retrieving and packing products——and the screenings could have 

been eliminated without affecting the employees' ability to 

perform their principal activity of retrieving and packaging 

 

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

29 Integrity Staffing, 135 S. Ct. at 519. 
No. 2014AP1880 

24

products,30 the time spent waiting to undergo and undergoing 

security screening was noncompensable.31

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

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

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

Staffing is consistent with Tyson Foods. Nor is Integrity 

Staffing inconsistent with prior federal precedent.32 Instead, 

Integrity Staffing once again clarified that whether an activity 

is integral and indispensable to an employee's principal 

activities is answered by reference to the nature of the 

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

cases are fact dependent. 

¶71 Both Integrity Staffing and Tyson Foods support the 

proposition that just because the employer requires employees to 

perform an activity that benefits the employer does not 

 

30 Integrity Staffing, 135 S. Ct. at 518. 

31 Integrity Staffing, 135 S. Ct. at 519. 

32 In Steiner v. Mitchell, 350 U.S. 247 (1956), the Court 

held battery plant employees were entitled to compensation for 

time spent showering and changing clothes because of the toxic

chemicals in the plant were "indispensable to the performance of 

their productive work and integrally related thereto." Steiner, 

350 U.S. at 249, 251. In a different case, the Court held that 

meatpacker employees were entitled to compensation for time 

spent sharpening their knives. See Mitchell v. King Packing 

Co., 350 U.S. 260, 262-63 (1956). Conversely, in a third case, 

the Supreme Court held the time spent waiting by poultry plant 

employees to don protective equipment was noncompensable because 

"such waiting . . . was two steps removed from the productive 

activity on the assembly line . . . .'" IBP, Inc. v. Alvarez, 

546 U.S. 21, 42 (2005) (emphasis added). 
No. 2014AP1880 

25

automatically render that activity integral and indispensable to 

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

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

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

integral and indispensable to the principal activities if it is 

an intrinsic element with which the employee cannot dispense if 

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

Integrity Staffing does not contradict Tyson Foods; Tyson Foods

remains good law. 

¶72 Another recent United States Supreme Court decision, 

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

discusses the issue of compensation for donning and doffing. 

¶73 In Sandifer, employees were required to wear special 

clothing and protective equipment and devices because of the 

hazards at steel plants.34 The statutory provision interpreted 

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

that the compensability of time spent "changing clothes or 

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

 

33 Integrity Staffing, 135 S. Ct. at 519 ("[A]n activity is 

integral and indispensable to the principal activities . . . if 

it is an intrinsic element . . . with which the employee cannot 

dispense if he is to perform his principal activities."); Tyson 

Foods, 350 Wis. 2d 380, ¶26 ("An integral part of a principal 

activity includes . . . an activity that is . . . indispensable 

to its performance."). 

34 Sandifer, 134 S. Ct. at 874. 

35 Sandifer, 134 S. Ct. at 874. 
No. 2014AP1880 

26

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

the defendant, contended that the provision in the collective 

bargaining agreement rendering noncompensable the time spent 

donning and doffing the special clothing and protective 

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

§ 203(o).37 

¶74 According to the Sandifer Court, the exception for 

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

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

part of the principal activities for which covered workmen are 

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

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

collective bargaining agreement, the time spent donning and 

doffing the special clothing and protective equipment and 

devices would have been integral and indispensable to the 

principal activities for which the employees were employed.39 

Thus, the time would have been compensable. 

¶75 Analyzing dictionary definitions of the statutory 

terms "change" and "clothes," the Sandifer Court concluded the 

time spent putting on and taking off the special clothing and 

 

36 29 U.S.C. § 203(o) (emphasis added). 

37 Sandifer, 134 S. Ct. at 874. 

38 Sandifer, 134 S. Ct. at 877 (quoting Steiner v. Mitchell, 

350 U.S. 247, 256 (1956)). 

39 Sandifer, 134 S. Ct. at 876 (quoting Sandifer v. U.S. 

Steel Corp., 678 F.3d 590, 596 (7th Cir. 2012)). 
No. 2014AP1880 

27

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

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

time spent donning and doffing was not compensable under 29 

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

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

Wisconsin law. Although the clothing and protective equipment 

and devices at issue in Sandifer were more specialized than 

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

the conclusion that the clothing and equipment at issue in the 

instant case is integral and indispensable to the employees' 

principal work activities. 

¶77 Moreover, although Hormel and the Union have entered 

into a collective bargaining agreement, the agreement does not 

speak to the compensability of time spent donning and doffing 

the required clothing and equipment. 

¶78 Applying Tyson Foods, Integrity Staffing, and 

Sandifer, we conclude that donning and doffing the clothing and 

equipment at the beginning and end of the day in the instant 

case is "integral and indispensable" to the employees' principal 

activities of producing food products. Accordingly, we affirm 

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

be compensated for the 5.7 minutes per day spent donning and 

 

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

41 Sandifer, 134 S. Ct. at 879. 
No. 2014AP1880 

28

doffing the required clothing and equipment at the beginning and 

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

IV

¶79 We next examine whether the time spent donning and 

doffing Hormel's required clothing and equipment during meal 

periods is considered compensable work time. 

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

meal period. 

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

meal periods were compensable under two regulations. First, 

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

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

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

thus counted as compensable work time.42 

¶82 We will address the applicable regulations, Wis. 

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

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

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

 

42 Although the concurrence/dissent concludes that the 

unpaid meal periods are not compensable, the concurrence/dissent 

cites only one of these regulations, Wis. Admin. Code § DWD 

274.02(3). See concurrence/dissent, ¶119 n.8. Instead, the 

concurrence/dissent analyzes whether leaving the facility during 

a meal period is a "principal activity" under Wis. Admin. Code 

§ DWD 272.12(2)(e). See concurrence/dissent, ¶¶122-124. 

The "principal activity" analysis under Wis. Admin. Code 

§ DWD 272.12(2)(e) applies to "[p]reparatory and concluding 

activities." Meal periods are not generally viewed as 

"[p]reparatory and concluding activities." 
No. 2014AP1880 

29

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

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

employee is not relieved if they are required to perform any 

duties, whether active or inactive, while eating." 

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

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

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

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

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

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

also be considered an on-duty meal period."

¶85 The circuit court declared that the required donning 

and doffing of clothing and equipment to leave the Hormel plant 

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

30-minute meal period in violation of Wisconsin law. 

Nevertheless, the circuit court refused to award damages for 

employees who remained on site during the meal period. The 

circuit court did not adopt the Union's position that the 

employees were to be reimbursed for the alleged lost 30-minute 

meal break when the employees did not leave the premises but 

simply sat in the lunch room for 30 minutes and ate their meal. 
No. 2014AP1880 

30

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

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

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

lunch period was sparse." The circuit court apparently agreed 

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

unpaid meal period, damages could be awarded only to the 

employees who left the premises during the meals period. The 

circuit court accepted the evidence that 1% of the employees 

donned and doffed the clothing and equipment and left the 

premises for meals. The parties stipulated that if the circuit 

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

period claim would be $15,000. 

¶87 The parties explained in the stipulation that the 

stipulation was entered to limit the issues and expedite the 

trial. Neither party took any opportunity at the circuit court 

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

award.

¶88 In this court, neither Hormel nor the Union made any 

arguments specifically regarding the compensability of the 

 

43 The Union argued that because Hormel's work rules 

required the employees to don and doff their clothing and 

equipment to leave the facility during their meal periods, the 

vast majority of employees chose to remain on site during their 

meal periods. The circuit court referred to this as the Union's 

"chilling effect" argument, and concluded it was unsupported by 

any credible evidence. If the circuit court had accepted the 

Union's "chilling effect" argument, damages would have been 

about $1.5 million. 
No. 2014AP1880 

31

unpaid meal periods. They merely discussed the meal periods in 

stating the background of the dispute. 

¶89 Hormel's counsel never discussed the compensability of 

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

this court or in oral argument. 

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

counsel did responded to several questions from the court at 

oral argument regarding the compensability of unpaid meal 

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

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

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

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

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

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

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

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

this court and the court of appeals addressed only the circuit 

court's determination that 5.7 minutes spent per day donning 

and doffing the required clothing and equipment is "integral and 

indispensable" to the employees' principal work activities of 

food production. 

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

conclusion that the 5.7 minutes spent per day donning and 

 

44 See concurrence/dissent, ¶119.

45 Concurrence/dissent, ¶120. 
No. 2014AP1880 

32

doffing the required clothing and equipment is integral and 

indispensable to the employees' principal work activities. 

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

the required donning and doffing of clothing and equipment to 

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

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

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

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

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

parties' stipulation appears to be an attempt by the circuit 

court and the parties to efficiently resolve this dispute 

without a definitive ruling on the meal period. The parties 

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

issue of donning and doffing the Hormel-required clothing and 

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

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

disturb the $15,000 accommodation between the parties. 

V

¶95 Having determined that the donning and doffing at the 

beginning and end of the day is integral and indispensable to 

the employees' principal activities in producing food products, 

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

 

46 See Maurin v. Hall, 2004 WI 100, ¶120, 274 Wis. 2d 28, 

682 N.W.2d 866 (Abrahamson, C.J., & Crooks, J., concurring) 

("The rule of law is generally best developed when matters are 

tested by the fire of adversarial briefs and oral argument), 

overruled on other grounds by Bartholomew v. Wis. Patients Comp. 

Fund, 2006 WI 91, 293 Wis. 2d 38, 717 N.W.2d 216
No. 2014AP1880 

33

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

itself with trifles). 

¶96 The circuit court and Hormel viewed Hormel as having 

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

doctrine. The circuit court determined that "Hormel has failed 

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

doctrine, and, therefore, that doctrine is not controlling 

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

¶97 The de minimis non curat lex doctrine "permits 

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

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

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

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

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

¶98 Assuming, without deciding, that the de minimis

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

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

doctrine does not bar compensation for the time spent donning 

and doffing the required clothing and equipment because the time 

spent donning and doffing is not a "trifle."

 

47 The Sandifer court remarked (in the context of 29 U.S.C. 

§ 209(o)) that "[a] de minimis doctrine does not fit comfortably 

within the statute at issue here, which, it can fairly be said, 

is all about trifles——the relatively insignificant periods of 

time in which employees wash up and put on various items of 

clothing needed for their jobs." Sandifer, 134 S. Ct. at 880.
No. 2014AP1880 

34

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

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

Wisconsin cases, statutes, or regulations state that the de 

minimis doctrine applies to Wisconsin DWD regulations or in 

employment disputes. Wisconsin courts have, however, applied 

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

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

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

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

¶100 Despite the lack of Wisconsin case law or state 

statutory guidance with regard to the de minimis doctrine in the 

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

our conclusions. 

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

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

defense to disputes originating under the Federal Labor 

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

680 (1946). The United States Supreme Court stated that 

overtime compensation that concerns "only a few seconds or 

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

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

actualities of working conditions or by the policy of the Fair 

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

minimis doctrine appears in the federal regulations. See 29 

 

48 Tyson Foods, 350 Wis. 2d 380, ¶51. 
No. 2014AP1880 

35

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

doctrine has no explicit basis in the Wisconsin statutes or 

Wisconsin regulations in the instant case.

¶102 In the instant case, employees spend approximately 24 

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

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

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

substantial sums for Hormel. We agree with the circuit court 

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

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

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

In Mitchell, the Seventh Circuit held the de minimis doctrine 

applicable to donning and doffing during a meal break. 

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

disagreement regarding the amount of time spent donning and 

doffing equipment, the federal court of appeals quoted the 

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

881 (2014), that "it is most unlikely Congress meant § 203(o) to

convert federal judges into time-study professionals." 

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

Thus, the Seventh Circuit held that under the de minimis

doctrine, it was better to leave to collective bargaining, 

rather than judicial determination, the issue of how much time 

was spent donning and doffing equipment on different days. 

Mitchell, 745 F.3d at 843. 

¶104 Here, Hormel and the Union stipulated to the donning 

and doffing period in question at the beginning and end of the 
No. 2014AP1880 

36

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

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

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

spent donning and doffing the clothing and equipment. 

¶105 Assuming, without deciding, that the de minimis 

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

272.12, the de minimis doctrine does not bar compensation for 

the time spent donning and doffing the required clothing and 

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

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

doffing of the clothing and equipment at the beginning and end 

of the day is integral and indispensable to the employees' 

principal activity——to successfully and sanitarily produce 

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

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

certainly significant to an employee and to Hormel. 

Accordingly, we conclude that the period spent donning and 

doffing at the beginning and end of the day is compensable under 

Wis. Admin. Code § DWD 272.12 and affirm the judgment and order 

of the circuit court.

¶106 For the reasons set forth, we conclude: 

(1) Wisconsin Admin. Code § DWD 272.12 requires 

Hormel to compensate its employees for the 5.7 

minutes per day spent donning and doffing the 

clothing and equipment at the beginning and end 

of the day. Relying on Tyson Foods, 350 Wis. 2d 

380, as did the circuit court, we conclude, as 
No. 2014AP1880 

37

did the circuit court, that the employees' 

donning and doffing clothing and equipment at the 

beginning and end of the day brought Hormel into 

compliance with federal food and safety 

regulations and was integral to sanitation and 

safety in the employees' principal activities, 

namely food production.

(2) The required donning and doffing of clothing and 

equipment at the beginning and end of the day 

does not fall within the doctrine of de minimis 

non curat lex. The wages involved are not a 

"trifle" either for the employees or Hormel.

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

is affirmed.

¶107 REBECCA G. BRADLEY, J., did not participate.
No. 2014AP1880.pdr

1

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

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

agree with its conclusion that donning and doffing of companyrequired clothing and gear at the beginning and end of the

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

Foods Corporation for which compensation is required.

2 I also 

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

of its obligation to compensate for 5.7 minutes per day for 

those tasks by the de minimis rule.3 

¶109 I dissent from the lead opinion because I conclude 

that Hormel is not required to further compensate its employees 

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

workplace for lunch. Leaving during the lunch break serves no 

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

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

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

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

which compensation is due each employee at 5.7 minutes per 

workday. That is the total time presented to us as a 

stipulation by the parties for an employee to accomplish donning 

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

allocated for donning and doffing were not cabined at a 

 

1 The lead opinion represents the decision of two justices: 

Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley. 

2 Lead op., ¶7.

3 Id. at ¶8.
No. 2014AP1880.pdr

2

specified number of minutes per employee per workday, the de 

minimis rule would preclude compensation because keeping 

accurate payroll records of the varying time that each employee 

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

nearly impossible administrative task for Hormel. Cabining the 

time at a specified number of minutes per employee per workday 

for which compensation is due was the mode employed in prior 

contracts between Hormel and the Union for those tasks. 

Accordingly, I respectfully concur in part and dissent in part 

from the lead opinion.

I. BACKGROUND

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

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

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

the discussion that follows. 

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

business is food production. Hormel's Beloit plant has 

assembly-line food preparation where raw materials enter the 

facility and move through a production-line process where meat, 

seasonings and other ingredients are ground, chopped and 

prepared for cooking and canning. During part of the food 

preparation, product ingredients are in open containers as 

employees work to prepare and cook various raw materials. The 

production process of food products ends when high temperature, 

heavy pressure canning occurs. 

¶112 The claim here arises because Hormel requires 

employees to wear Hormel-provided clothing, "whites," and 
No. 2014AP1880.pdr

3

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

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

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

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

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

before they return to food preparation. 

¶113 Hormel is not currently compensating employees for 

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

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

During subsequent contract negotiations, the Union bargained 

away this compensation provision.6

¶114 The parties stipulated that 5.7 minutes is the total 

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

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

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

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

the start of the workday and remove before they leave the 

workplace is time worked for which compensation is due under 

 

4 For convenience, I refer to the clothing provided by 

Hormel as "whites," even though some employees are required to 

wear clothing that is blue in color. 

5 The record reflects that in the 1980s employees were 

compensated 12 minutes per day for donning and doffing under the 

then union contract.

6 Hormel does not argue that no compensation is due because 

such compensation was bargained away in a collective bargaining 

agreement, which is permitted under state and federal law. See

Aguilar v. Husco Int'l, Inc., 2015 WI 36, ¶24, 361 Wis. 2d 597, 

863 N.W.2d 556; Wis. Admin. Code § DWD 274.05; see also Sandifer 

v. United States Steel Corp., 134 S. Ct. 870, 878-79 (2014).
No. 2014AP1880.pdr

4

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

equipment that occurs when employees choose to leave during the 

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

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

compensating its employees for donning and doffing by the de 

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

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

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

II. DISCUSSION

A. Standard of Review

¶115 To decide the questions presented, we must interpret 

Wisconsin Administrative Code provisions, most specifically, 

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

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

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

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

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

independently. DaimlerChrysler v. LIRC, 2007 WI 15, ¶10, 299 

Wis. 2d 1, 727 N.W.2d 311. 

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

donning and doffing, whether the de minimis rule nevertheless 

precludes Hormel employees' recovery for otherwise compensable 

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

Lindow v. United States, 738 F.2d 1057, 1062 (9th Cir. 1984).
No. 2014AP1880.pdr

5

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

1. Beginning and end of workday

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

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

for which compensation is due because they are part of the 

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

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

to compensate its employees for 5.7 minutes per day that have 

been cabined for donning and doffing clothing and equipment at 

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

principal activity of Hormel is sanitary food production and 

Hormel's requirement that employees wear clean whites, hair 

nets, beard nets and other equipment designed to keep foreign 

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

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

appeals correctly reasoned in regard to Weissman's claim for 

donning required clothing and gear at the start of the workday 

and doffing at day's conclusion, "donning and doffing here 

constitute 'preparatory and concluding' activities that are 'an 

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

sanitary food production. Weissman v. Tyson Prepared Foods, 

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

2. Lunch break

¶118 The circuit court granted compensation for doffing and 

donning clothing and gear for those employees who chose to leave 

 

7 See lead op., ¶7.
No. 2014AP1880.pdr

6

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

for 30 minutes of additional compensation because it claimed 

that doffing and donning in order to leave the workplace during 

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

therefore compensation for the full 30 minutes was due. 

¶119 Before us, the Union renews its claim that 

compensation is due for an additional 30 minutes because the 

time required for doffing and donning that occurs when employees 

choose to leave the workplace reduces the lunch break to less 

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

The lead opinion affirms the circuit court, and ducks the 

question presented about the compensability of the doffing and 

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

the Union made any arguments specifically regarding the 

compensability of the unpaid meal periods."9

¶120 The lead opinion minimizes what occurred at oral 

argument before us. For example, the following questions were 

asked and answered:

CHIEF JUSTICE ROGGENSACK: Part of your brief was 

people wanting to leave the workplace for 30 minutes, 

and in order to do so they have to take off the 

clothes that they're required to put on when they go 

out to lunch and put them back on again when they come 

in from lunch, correct?

UNION COUNSEL: Yes. 

 

8 See Wis. Admin. Code § DWD 274.02(3) (2013). 

9 Lead op., ¶88. 
No. 2014AP1880.pdr

7

CHIEF JUSTICE ROGGENSACK: Are you asking for 

compensation for that in addition to the beginning of 

the workday and the end of the workday for anybody who 

leaves the place of employment?

UNION COUNSEL: Well the trial court looked at that 

and the regulations again are clear. That if there is 

not a 30 minute uninterrupted break, it has to be paid 

for. So the issue is, since people are required to don 

before they leave the plant and doff before they, when 

they come back, they are actually getting less than a

30-minute lunch. 

CHIEF JUSTICE ROGGENSACK: Okay so the answer to my 

question is "yes?" 

UNION COUNSEL: They should be paid for the lunchtime. 

And the court found that approximately 1% of the 

workers do that. So we're not asking for pay for the 

other 99%. 

. . . . 

JUSTICE A.W. BRADLEY: I'm focusing on the lunch hour, 

the 30 minutes. Our opinions have to make sense 

. . . . This doesn't make sense to me. If we would 

agree with the trial court that the donning and 

doffing for some employees who do this over the 30-

minute lunch hour should be compensable, what, doesn't 

that provide an incentive for . . . more, maybe all of 

the employees to say "oh let's get time and a half, 

let's put on and take off over the 30-minute lunch 

hour?" That doesn't make sense to me. It sounds like 

it will be giving a rather perverse incentive. Now, 

so tell me why it does make sense. Tell me why, since 

it only affects a few, according to the record, a few 

employees, that shouldn't be considered de minimis. So 

you've got two questions there. 

UNION COUNSEL: Well, again, it's only if, just 

factually, if you're leaving the plant that you're 

entitled to that pay. [Justice A.W. Bradley 

interjects]. I think the exact same test is being 

applied. So, if you find that donning and doffing the 

clothes is compensable in the morning and in the 

afternoon where employers are required because it is 

integral and indispensable, the exact same argument 

makes exact same sense because of the regulation that 

requires a bona fide meal period of 30 minutes. So 
No. 2014AP1880.pdr

8

Hormel would be required to allow employees to take a 

full 30-minute lunch, which includes being able to don 

first, then leave the plant, then come back 30 minutes 

later, and then——or doff first——and then don on the 

way back in.

JUSTICE A.W. BRADLEY: So you're not really responding 

to my concern about the potential for gaming the law? 

UNION COUNSEL: I don't see how it's gaming because 

the legislature has said that the Department of 

Workforce Development has to pass these regulations, 

and they have. They've said that everyone is entitled 

to a 30-minute bona fide meal period. 

. . . .

JUSTICE ABRAHAMSON: Does the 5.7 minutes include the 

initial putting them on and the final taking them off 

and the lunch hour donning and doffing?

UNION COUNSEL: No. 

JUSTICE ABRAHAMSON: So it only deals with putting 

them on to begin with and taking them off, right?

UNION COUNSEL: Right. 

JUSTICE ABRAHAMSON: But the trial court order says 

. . . that the class members have been denied the 

right to 30 minutes off duty to leave the premises and 

the doffing and donning clothes and gear during such 

30 minutes violates the class members. So the 

declaratory judgment is that's a violation. 

UNION COUNSEL: Right . . . yes. 

¶121 I conclude the reasoning that supports the conclusion 

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

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

therefore require compensation does not support compensation for 

doffing and donning when employees choose to leave Hormel's 

facility during their lunch break, nor does it support 30 

minutes more pay because time required to doff and don reduces 

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

9

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

employees leaving its facility during lunch break. Stated 

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

sanitary food production, which is a principal activity of 

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

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

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

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

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

employees for the initial donning and final doffing of whites 

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

principal activities of employees. However, leaving the 

workplace during lunch break is driven by principal activities 

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

own interests. Furthermore, approximately 1% of employees 

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

undertaking an activity, that activity cannot reasonably be 

contended to constitute a "principal activity" of the employer. 

Instead, the 1% of employees is furthering their own principal 

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

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

activities of employees.

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

workplace during lunch break, it is their personal and voluntary 

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

leaving serves no interest of Hormel. Accordingly, I conclude 

that Hormel is not required to compensate employees who leave 
No. 2014AP1880.pdr

10

the workplace for their entire lunch break, as the Union 

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

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

court in regard to payment for lunchtime doffing and donning, 

which order the lead opinion does not overturn.10

C. De Minimis Rule

¶125 Hormel contends that all donning and doffing should 

fall outside of its obligation to provide compensation because 

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

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

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

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

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

employees who choose to leave during their lunch break.

¶126 The United States Supreme Court discussed application 

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

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

(1946). There, the Court said that work "pursued necessarily 

and primarily for the benefit of the employer and his business" 

and rightly included in "the statutory workweek" may 

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

691-92 (citation omitted). 

 

10 Because four justices, Chief Justice Roggensack, Justice 

Prosser, Justice Ziegler and Justice Gableman, conclude that no 

compensation is due for doffing and donning during lunch break, 

the order of the circuit court is reversed in regard to the 

$15,000 payment that the circuit court ordered.

11 Id., ¶¶8, 98. 
No. 2014AP1880.pdr

11

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

particular context, one must consider whether the factual 

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

Ninth Circuit Court of Appeals carefully explained a test that 

it applied when considering whether compensation is excused that 

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

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

compensation for the Corps' requirement that they report to work 

15 minutes before the start of their scheduled shifts to perform 

certain tasks that took part of the required 15 minutes. 

Lindow, 738 F.2d at 1059. 

¶128 Lindow explained that the "de minimis rule is 

concerned with the practical administrative difficulty of 

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

1062. The court reasoned that keeping accurate track of 

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

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

Moon, De Minimis Non Curat Lex, 45 Mich. L. Rev. 537, 551 (1947) 

and its conclusion that Anderson was concerned with "just plain 

everyday practicality"). 

¶129 Lindow also explained that an "important factor in 

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

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

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

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

and Nardone v. Gen. Motors, Inc., 207 F. Supp. 336, 341 (D.N.J. 

1962)). Further, the court considered the "size of the 
No. 2014AP1880.pdr

12

aggregate claim" for those claims where time expended may have 

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

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

consider whether the claimants performed the work on a regular 

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

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

unpaid work did not occur on a daily basis).

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

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

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

practical, administrative difficulty of accurately recording 

small amounts of additional time that may vary from employee to 

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

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

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

Id. at 1062-63. 

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

applies, the cabined 5.7 minutes per day for donning whites and 

required gear at the beginning of the workday and doffing at the 

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

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

However, because doffing and donning by those employees who 

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

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

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

¶132 As I apply the Lindow test to determine whether the de 

minimis rule eliminates Hormel's obligation for compensation of 
No. 2014AP1880.pdr

13

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

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

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

payroll purposes the varying amounts of time that each 

individual employee expends to don and doff at the beginning and 

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

administrative impossibility to do so accurately. Furthermore, 

imposing such an obligation on Hormel could lead to an unending 

series of wage and hour claims by employees who contend that 

Hormel did not record the correct amount of time on particular 

days for particular employees. Stated otherwise, if the total 

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

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

precluded by the de minimis rule. 

¶133 Other courts have used the de minimis rule to 

eliminate otherwise compensable time that was too burdensome to 

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

837, 843 (7th Cir. 2014) (precluding an obligation to record 

small, varying amounts of time for payroll purposes in part 

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

when complaints about accuracy of recording were made). 

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

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

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

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

obligation on Hormel to record for payroll purposes the actual 

time spent by each employee on each day. 
No. 2014AP1880.pdr

14

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

amount of compensable time on a daily basis is consistent with 

the approach the Union took when donning and doffing were 

accorded in collective bargaining.12 It also frees Hormel from 

what would be a near administrative impossibility to do 

accurately. 

¶136 I note that the tasks for which compensation is 

required occur on a daily basis for each employee engaged in 

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

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

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

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

aggregate amount for all food preparation employees. 

¶137 Accordingly, I conclude that in the context presented

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

preclude compensation for 5.7 minutes per day for each food 

preparation employee who dons whites and required gear at the 

start of the workday and doffs them at the day's conclusion. 

D. Cabining Time Allotted

¶138 If the lead opinion were construed as leaving the 

amount of donning and doffing time open to adjustment for future 

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

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

specified number of minutes per employee per day for which 

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

 

12 See note 5, supra. 
No. 2014AP1880.pdr

15

near impossibility of Hormel's accurately recording small, 

varying amounts of time for payroll purposes for each employee. 

However, with compensable time cabined at a stipulated amount, 

Hormel knows what compensation is due for past work. Hormel 

also can choose to compensate through shortening future workdays 

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

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

cabining the time allotted for which compensation is due is 

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

III. CONCLUSION

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

conclusion that donning and doffing of company-required clothing 

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

part of a principal activity" of Hormel for which compensation 

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

Hormel is not relieved of its obligation to compensate for 5.7 

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

¶140 I dissent from the lead opinion because I conclude 

that Hormel is not required to further compensate its employees 

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

workplace for lunch. Leaving during the lunch break serves no 

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

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

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

also dissent because I would cabin the time for which 

compensation is due each employee at 5.7 minutes per workday. 

That is the total time presented to us as a stipulation by the 
No. 2014AP1880.pdr

16

parties for an employee to accomplish donning and doffing at the 

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

donning and doffing were not cabined at a specified number of 

minutes per employee per workday, the de minimis rule would 

preclude compensation because keeping accurate records of the 

varying time that each employee spends donning and doffing on 

each workday would be a nearly impossible administrative task 

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

per employee per workday for which compensation is due was the 

mode employed in prior contracts between Hormel and the Union 

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

dissent in part from the lead opinion.

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

PROSSER, JR. joins this opinion.
No. 2014AP1880.mjg

1

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

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

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

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

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

do not agree with the lead opinion's and the 

concurring/dissenting opinion's conclusion that Hormel must 

compensate its employees for the time they spend "donning and 

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

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

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

indispensable" to the employees' principal work activity of 

canning food.

¶143 Because an "integral and indispensable" analysis is 

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

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

 

1 This dissent often quotes information contained in the 

record. The information quoted is largely derived from trial 

testimony and the circuit court's opinion and order. Below is a 

list of individuals who testified at trial:

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

Pamela Collins: Quality Control, Weight, and Seam 

Technician at the Beloit cannery.

Charles Seeley: Production Specialist at the Beloit 

cannery.

Dennis Warne: Stork Operator at the Beloit cannery.

Resha Hovde: Corporate Manager of Regulatory 

Compliance and HAACP. HAACP stands for "hazard 

analysis critical control point."

(continued)
No. 2014AP1880.mjg

2

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

compensable work time or non-compensable preliminary and 

postliminary activities under Wis. Admin. Code. § DWD 

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

otherwise compensable work time, is this time non-compensable 

under the doctrine of de minimis non curat lex?

I. FACTUAL BACKGROUND

¶144 Hormel Foods Corporation ("Hormel") is a multinational company specializing in food production. All the 

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

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

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

¶145 Hormel has a variety of food producing plants located 

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

regard to what is being produced, Hormel requires its employees 

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

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

Every day Hormel employees "don and doff" hardhats, hearing 

protection, eye protection, hair nets, shoes,2 and clean clothes. 

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

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

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

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

 

Francisco Velaquez: Human Resource and Safety Manager 

at the Beloit cannery.

2 Employees wear "captive" or "dedicated" shoes. Captive 

shoes are shoes that are left at the facility overnight.
No. 2014AP1880.mjg

3

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

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

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

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

 

3 The concurring/dissenting opinion correctly notes that in 

the 1980's Hormel compensated its employees 12 minutes per day 

for "donning and doffing" under a then-existing collective 

bargaining agreement ("CBA"). Concurrence/Dissent, ¶113.

Eventually the compensation Hormel's employees received for 

"donning and doffing" was "bargained away." Id., ¶113 n.6.

The Wisconsin Administrative Code allows employees to 

bargain away rights they would otherwise have under the Code as 

long as the parties enter into a CBA agreement and apply for a 

waiver or otherwise meet the factors required for a waiver. See

Wis. Admin. Code § DWD 247.05; Aguilar v. Husco Int'l, Inc., 

2015 WI 36, ¶11, 361 Wis. 2d 597, 863 N.W.2d 556 ("[E]ven though 

the 20-minute unpaid breaks were technically violations of the 

code, it would be unreasonable to grant back pay because the 

breaks had posed no health or safety concerns, the statute 

permits waivers in circumstances such as these, and the 

employees had enjoyed other benefits in exchange for . . . the 

short unpaid meal periods.")

But, as the concurring/dissenting opinion points out, 

"Hormel does not argue that no compensation is due because such 

compensation was bargained away in a collective bargaining 

agreement, which is permitted under state and federal law." 

Concurrence/Dissent, ¶113 n.6.

4 "Donning" a belt takes 16.740 seconds, "donning" ear plugs 

takes 6.960 seconds, "donning" a hair net takes 9.780 seconds, 

"donning" a hard hat takes 5.940 seconds, "donning" captive 

shoes takes 26.280 seconds, "donning" safety glasses takes 5.400 

seconds, "donning" uniform pants takes 19.320 seconds, and 

"donning" a uniform shirt takes 18.780 seconds. 
No. 2014AP1880.mjg

4

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

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

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

per day.8

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

Beloit cannery employs approximately 290 people for various 

types of work ranging from quality control technician to 

forklift driver to sanitation crew member. The record reflects 

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

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

has open product in it.

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

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

 

5 "Doffing" a belt takes 3.720 seconds, "doffing" ear plugs 

takes 1.980 seconds, "doffing" a hair net takes 4.860 seconds, 

"doffing" a hard hat takes 4.440 seconds, "doffing" captive 

shoes takes 14.640 seconds, "doffing" safety glasses takes 3.480 

seconds, "doffing" uniform pants takes 10.800 seconds, and 

"doffing" a uniform shirt takes 6.420 seconds. 

6 Washing hands takes 14.640 seconds.

7 The time it takes to walk to and from an employee's 

workstation varies depending on the location of the workstation. 

The shortest walk time to a workstation takes 27.66 seconds, and 

the shortest walk time from a workstation takes 26.16 seconds 

(for a total of 53.82 seconds per day). The longest walk time to 

a workstation takes 2 minutes, 19.56 seconds, and the longest 

walk time from a workstation takes 1 minute, 31.74 seconds (for 

a total of 3 minutes, 51.3 seconds per day).

8 Attached to this dissent are time tables contained in the 

record. The tables show how long it takes to "don" and "doff" 

various items, to wash hands, and to walk to assigned 

workstations.
No. 2014AP1880.mjg

5

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

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

outside suppliers deliver raw product in a receiving area; the 

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

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

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

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

that renders the product shelf-stable.

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

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

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

cook process

provides a thermal destruction of organisms, of a 

trillion organisms. It's 12 to the 10th power. So if 

you could imagine a trillion organisms, and whatever 

product it is, it would destroy all the vegetative 

organisms . . . . So through time, an extensive amount 

of time at a high temperature, we're able to eliminate 

those organisms of concern.

In short, the 12-D cook and acidification processes "destroy any 

organisms of concern" such that any organism in the can or glass 

container "certainly wouldn't be a food safety issue."9 No 

 

9 The following trial testimony emphasizes just how powerful

the 12-D cook and acidification processes are:

Q. Ms. Hovde, yesterday there was a hypothetical 

example that was posed to Mr. Ramlo, the plant manager 

at the Beloit facility, and it was regarding a world 

in which Hormel allows street clothes in the Beloit

facility and doesn't require whites. Now in that 

world, according to the hypothetical, an avid 

fisherman who works at the Beloit facility would 

report to work with fish scales on his clothing and 

worms in his pockets. Based on the 12-D cook process 

(continued)
No. 2014AP1880.mjg

6

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

cook or acidification processes. The next time the product would 

come into contact with someone would be when a consumer opens 

the can.

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

federal regulation by the United States Department of 

Agriculture (USDA), the United States Food and Drug 

Administration (FDA), and the federal Occupational Safety and 

Health Administration (OSHA). These regulations ensure that 

Hormel satisfies cleanliness, quality, and safety standards; 

however, these regulations "do not require these standards be 

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

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

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

adulteration or the general creation of unsanitary type 

conditions." Notably, the circuit court found,

 

you just described, what if those fish scales or those 

worms made their way into a can of Hormel product? 

Would they pose a threat to human safety?

A. I would argue that the heat process would destroy 

any organisms of concern.

Q. It might not be desirable to have those items in 

the can –-

A. Correct.

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

issue?

A. Correct.
No. 2014AP1880.mjg

7

The USDA and FDA regulations do not require 

employees at the Beloit facility to wear whites. The 

USDA and FDA regulations do not specify who has to own 

or launder the clothing worn by the employees at the 

Beloit facility. Those regulations do not specify 

where the items have to be donned, doffed, and stored.

. . .

Hormel employees could wear street clothes at the 

Beloit facility and still comply with USDA and FDA 

regulations. USDA and FDA regulations do not require 

employees at the Beloit facility to keep their shoes 

within the facility. The use of captive or dedicated 

shoes is not the only method to avoid contamination at 

the Beloit plant. Hair covering is left to the 

company's discretion under the USDA and FDA 

regulations but the hair needs to be secured in a 

manner to prevent potential for product adulteration.

Thus, one way Hormel promotes cleanliness, quality, and safety 

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

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

II. THE "DONNING AND DOFFING" OF THE "WHITES" IS NOT COMPENSABLE

WORK TIME UNDER THE CODE OR PRECEDENT.

A. WISCONSIN ADMIN. CODE § DWD 272.12

¶150 To resolve this case, I must interpret and apply Wis. 

Admin. Code § DWD 272.12. Under Wis. Admin. Code § DWD 

272.12(1)(a)1., employees "must be paid for all time spent in 

'physical or mental exertion (whether burdensome or not) 

controlled or required by the employer and pursued necessarily 

and primarily for the benefit of the employer's business.'" An 

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

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

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

Code § DWD 272.12(1)(a)1.
No. 2014AP1880.mjg

8

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

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

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

any particular workday at which such employee commences their 

principal activity or activities' and 'the time on any 

particular workday at which they cease such principal activity 

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

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

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

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

all activities which are an integral part of a principal 

activity." Moreover,

[a]mong the activities included as an integral part of 

the principal activity are those closely related 

activities which are indispensable to its performance. 

If an employee in a chemical plant, for example, 

cannot perform their principal activities without 

putting on certain clothes, changing clothes on the 

employer's premises at the beginning and end of the 

workday would be an integral part of the employee's 

principal activity. . . .

Wis. Admin. Code § DWD 272.12(2)(e)1.c. (emphasis added).

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

preliminary or postliminary activity, then it falls outside the 

workday and does not qualify as compensable work time. In 

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

then it falls within the workday and qualifies as compensable 

work time. Principal activities include those activities that 

are an "integral and indispensable" part of a principal 

activity.
No. 2014AP1880.mjg

9

B. PRECEDENT: WEISSMAN v. TYSON FOODS, INTEGRITY STAFFING

SOLUTIONS, INC. v. BUSK, STEINER v. MITCHELL, AND MITCHELL v. 

KING PACKING CO.

¶153 In addition to interpreting and applying the pertinent 

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

applicable case law as a guide for determining when an activity 

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

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

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

and holdings of each case is appropriate.

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

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

Wis. 2d 351, 842 N.W.2d 359,

10 the court of appeals considered 

whether the "donning and doffing" of sanitary and protective 

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

Tyson employees at the Jefferson plant primarily produced 

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

question of whether the employees "donning and doffing" 

qualified as compensable worktime, the court conducted a twostep analysis.

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

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

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

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

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

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

 

10 Similar to the lead opinion, I will also refer to 

Weissman v. Tyson Foods, Inc., as "Tyson Foods."
No. 2014AP1880.mjg

10

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

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

closely related to the principal activity and (2) indispensable 

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

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

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

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

minimal time employees spent "donning and doffing" sanitary gear 

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

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

¶156 A few months after the Wisconsin Court of Appeals 

decided Tyson Foods, the Supreme Court of the United States 

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

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

addressed the issue of "whether the employees' time spent 

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

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

515. The Court concluded that the "roughly 25 minutes" employees 

spent each day was not compensable work time. Id.

¶157 In reaching that conclusion, the Court reiterated that 

it "has consistently interpreted 'the term "principal activity 

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

integral and indispensable part of the principal activities.'" 

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

 

11 Similar to the lead opinion, I will also refer to 

Integrity Staffing Solutions, Inc. v. Busk, as "Integrity 

Staffing."
No. 2014AP1880.mjg

11

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

activity is . . . integral and indispensable to the principal 

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

intrinsic element of those activities and one with which the 

employee cannot dispense if he is to perform his principal 

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

unequivocally rejected other courts' reliance on a requiredbenefit analysis: "The [Ninth Circuit] erred by focusing on 

whether the employer required a particular activity. The 

integral and indispensable test is tied to the productive work 

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

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

whether the activity is for the benefit of the employer is 

similarly overbroad."12 Id. The Court rejected the requiredbenefit approach because "[i]f the test could be satisfied 

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

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

and postliminary activities that Congress worried would "bring 

about the financial ruin of many employers," would result in 

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

 

12 I agree with the lead opinion's and the 

concurring/dissenting opinion's conclusion that Tyson Foods need 

not be overruled because although the court of appeals applied a 

required-benefit test, it went on to discuss whether the 

"donning and doffing" under the circumstances present in that 

case were "integral and indispensable" to a principal activity.
No. 2014AP1880.mjg

12

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

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

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

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

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

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

whether workers in a battery plant must be paid as 

part of their "principal" activities for the time 

incident to changing clothes at the beginning of the 

shift and showering at the end, where they must make 

extensive use of dangerously caustic and toxic 

materials, and are compelled by circumstances, 

including vital consideration of health and hygiene, 

to change clothes and to shower in facilities in which 

the state law required their employer to provide, or 

whether these activities are "preliminary" or 

"postliminary" . . . .

350 U.S. at 248 (emphasis added). In answering that question, 

the Court looked to the particular circumstances of the battery 

 

13 Congress enacted the Portal-to-Portal Act in an effort to 

remedy a judicial interpretation of the Fair Labor Standard Act 

that if permitted to stand would have "br[ought] about the 

financial ruin of many employers" and would have resulted in a 

windfall of payments to employees "for activities performed by 

them without any expectation of reward beyond that included in 

their agreed rates of pay." Integrity Staffing Solutions, Inc. 

v. Busk, 135 S. Ct. 513, 517 (2014) (internal quotation marks 

omitted) (quoting 29 U.S.C. §§ 251(a)-(b)). The Portal-to-Portal 

Act exempted employers from liability for claims based on 

"activities which are preliminary to or postlimiary to said 

principal activity or activities." Id. (quoting 29 U.S.C. 

§ 254(a)). These preliminary or postliminary activities "occur 

either prior to the time on any particular workday at which such 

employee commences, or subsequent to the time on any particular 

workday at which he ceases, such principal activity or 

activities." Id. (quoting 29 U.S.C. § 254(a)).
No. 2014AP1880.mjg

13

plant, which included the fact that employees "customarily work 

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

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

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

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

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

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

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

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

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

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

the Court agreed, that the employees' activities (changing 

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

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

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

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

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

(emphasis added) (internal quotation marks omitted). In short, 

changing clothes and showering was an "integral and 

indispensable" part of the production of batteries because 

without it, employees would be exposed to chemicals and 

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

the changing and showering was under those particular 

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

difficult to conjure up an instance where changing clothes and 

showering are more clearly an integral and indispensable part of 
No. 2014AP1880.mjg

14

the principal activity of the employment than in the case of 

these employees." Id. at 256.

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

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

indispensable" test is. In Mitchell, the Court considered 

"whether the knife-sharpening activities of the employees of 

respondent King Packing Co." were an "integral and 

indispensable" part of the principal activity of meatpacking. 

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

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

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

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

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

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

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

knife would slow down production which is conducted on an 

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

as the quality of the hides, cause waste and make for 

accidents." Id. The Court added, "[for] a knife to be of any 

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

(emphasis added). Consequently, the Court held that the knifesharpening activities were "an integral part of and 

indispensable to the various butchering activities for which 

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

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

activity of slaughtering, butchering, dressing, and distributing 

the meat. Id. at 261, 262.
No. 2014AP1880.mjg

15

C. THE OUTCOME OF THE LEAD OPINION AND THE CONCURRING/DISSENTING 

OPINION CANNOT SURVIVE APPLICATION OF THE "INTEGRAL AND 

INDISPENSABLE" TEST.

¶162 Turning to the employees at the Beloit cannery, I 

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

"integral and indispensable" to performance of a principal 

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

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

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

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

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

safely canning clean food. 

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

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

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

principal activity is incorrect. It is incorrect for two main 

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

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

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

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

on and affirms the circuit court's analysis, but the circuit 
No. 2014AP1880.mjg

16

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

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

and doffing" would be compensable.

1. The FDA and USDA Regulations Do Not Support The Lead 

Opinion's Conclusion.

¶164 To begin, the "donning and doffing" of the "whites" is 

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

regulations. There was abundant testimony regarding this point 

at trial:

Q. Are the whites necessary to avoid contamination at 

the Beloit facility?

A. No, they're not.

Q. Can you explain to me why that is?

A. Again, back to the regulation, there's various 

means to an end. And in that type of environment, in 

the food safety realm, we kind of categorize our 

plants into, you know, maybe high-risk operations. In 

our meat and poultry establishments that produce 

ready, or what we determine to be ready-to-eat exposed 

meat products, those are determined to be high-risk 

operations. Canning operations such as the Beloit 

 

14 Although this dissent refers most often to the lead 

opinion, the concurring/dissenting opinion suffers from the same 

shortfalls because it agrees with the lead opinion's point of 

view: "While I do not join the lead opinion, I agree with its 

conclusion that donning and doffing of company-required clothing 

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

part of a principal activity' of Hormel Foods Corporation for 

which compensation is required," concurrence/dissent, ¶108 

(footnote omitted) (citing Lead op., ¶7), and "I agree with the 

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

Hormel to compensate its employees for 5.7 minutes per day that 

have been cabined for donning and doffing clothing and equipment 

at the beginning and end of the workday," id., ¶117 (citing Lead 

op., ¶7).
No. 2014AP1880.mjg

17

facility are deemed lower risk due to that 12-D type 

cook process, the canning process in general.

Q. Could Hormel allow employees to wear street clothes 

at the Beloit facility and still comply with the FDA 

regulations?

A. Yes, they could.

Q. And could Hormel allow employees to bring whites 

home with them and bring them back to the facility and 

still comply with the FDA regulations? 

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

Q. So long as the clothing is clean?

A. That's correct.

Q. Do the FDA regulations require employees at the 

Beloit facility to keep their shoes within the 

facility?

A. No, they do not.

Q. What, if anything, do the regulations require in 

terms of the shoes people wear at the Beloit facility?

A. Again, it's just clean and what we need to prevent 

adulteration of the product.

Q. Are captive, or as you've termed it, dedicated 

shoe, is that necessary to avoid contamination at the 

Beloit facility?

A. No, it's not.

. . .

Q. Do the FDA regulations require employees at the 

Beloit facility to wear the hardhats that you see on 

Holly Hormel?

A. No, the FDA regulations do not. 

Q. What, if anything, do the FDA regulations require 

in terms of hardhats?

A. In terms of hardhats, nothing. As far as hair 

covering, they leave it to our discretion. The hair 
No. 2014AP1880.mjg

18

should be secured, a manner secured to prevent the 

potential for product adulteration.

. . .

Q. Okay. Do the FDA regulations require employees at 

the Beloit facility to wear safety glasses?

A. No. 

Q. Do the FDA regulations require employees at the 

Beloit facility to wash their hands?

A. Again, the regulations are not very specific. It's 

somewhat of a means to an end, and it does describe 

where necessary they should be washing their hands. So 

if they're in direct product contact, they should be 

washing their hands per the FDA regulations.

(Emphasis added.) Similarly, the USDA regulations do not require 

"donning and doffing":

Q. Do the USDA regulations require employees at the 

Beloit facility to wear whites?

A. No, they do not.

Q. What, if anything, do the USDA regulations require 

in terms of clothing at the Beloit facility?

A. Again, it's very open-ended in terms of, you know, 

there's various means to an end. We just have to 

prevent adulteration and the creation of insanitary 

conditions. So essentially clean clothes.

Q. Do the USDA regulations specify who has to own or 

launder the clothing worn at the Beloit facility?

A. They do not.

Q. Do the regulations specify where those items are 

donned and doffed and stored?

A. No.

Q. Does wearing the whites at the Beloit facility 

comply with the USDA regulations?

A. Yes, it does.
No. 2014AP1880.mjg

19

Q. Are whites necessary to prevent the adulteration of 

product or the creation of insanitary conditions at 

the Beloit facility?

A. No, they're not.

(Emphasis added.) After hearing all the testimony regarding the 

federal regulations, the circuit court even concluded that the 

federal regulations do not require employees to wear the 

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

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

the circuit court concluded that "Hormel employees could wear 

street clothes at the Beloit facility and still comply with the 

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

with the federal regulations under these circumstances is not——

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

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

principal activity of canning food. The lead opinion nonetheless 

contorts these federal regulations into just such a conclusion.

2. The Lead Opinion Conflates The Required-Benefit Test With The 

"Integral and Indispensable" Test.

¶165 The lead opinion's reliance on the circuit court's 

"comprehensive decision holding in favor of the Union" is 

mistaken because the circuit court incorrectly applied the 

"integral and indispensable" test by repeatedly focusing on 

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

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

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

test.

¶166 After discussing whether the "donning and doffing" of 

the "whites" was required by and benefitted the employer, the 
No. 2014AP1880.mjg

20

circuit court appeared to transition to analyzing and applying 

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

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

"ARE THE ACTIVITIES CLOSELY RELATED TO AND INDISPENSABLE TO 

PERFORMANCE OF A PRINCIPAL ACTIVITY?" Moreover, the circuit 

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

there was nothing essential about the clothes Hormel required 

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

that they could probably perform each of the movements required 

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

went on to quote plant manager Scott Ramlo:

A. The clothes that they put on are there for their 

benefit and they're a good manufacturing practice and 

we require it, that's not disputed. But it, it doesn't 

have anything to do with the production of the 

product, I guess, for lack of -- maybe I'm 

oversimplifying it, but its not required, it -- I'm 

sorry, it's not essential as they make the product, it 

adds nothing to it. Now there are certain food 

manufacturing processes that, you know, perfectly 

clean clothes and, and like a ready-to-eat atmosphere, 

say something like that, we don't have any of those in 

the Beloit plant that it might add some value to it. 

But I can go there today and produce the products and 

do everything that everybody had on that screen other 

than the sanitation job, I can make that product the 

same quality. It's no different. And the key to the 

whole process in the Beloit plant being a cannery is 

that the product is pressure cooked and it's shelfstable. So any microorganisms, that type of thing that 

might be inferred by having perfectly clean clothing 

each day really is negated by the thermal 

process. . . .

(Emphasis added.) Rather than applying the "integral and 

indispensable" test, however, the circuit court's analysis 

transformed into an analysis of the required-benefit test: 
No. 2014AP1880.mjg

21

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

start when he admitted that wearing the whites and gear was 

required by Hormel." (Emphasis added.)

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

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

required by the employer shows that the circuit court mixed a 

required-benefit analysis into what was supposed to be an 

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

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

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

Ms. Collins agreed that she could physically perform 

the tasks she is required to perform at work in 

clothes she wore from home but Ms. Collins 

continually, and correctly, pointed out that she is

required to wear those clothes and equipment in order 

to get into the canning part of the plant pursuant to 

Hormel's rules.

The overwhelming evidence is that Hormel requires the 

class member to don and doff those materials to 

operate the Beloit facility in compliance with the 

federal regulations of USDA, FDA, and OSHA. There are 

also efficiencies already noted, an avoidance of 

recalls, and customer satisfaction benefits. All of 

these benefits are in place for Hormel because it 

requires the Class members to don and doff the 

clothing and equipment on the premises.

I further find that the donning and doffing of the 

whites and related gear is indispensable to the 

performance of the class members' principal 

activities. This is so because Hormel has made it so.

The only credible evidence is that Class members are 

required to wear these materials . . . ."

These acts are obligatory, essential, and absolutely 

necessary because Hormel controls the process and has 

required these acts.
No. 2014AP1880.mjg

22

The focus is not on what the United States government 

may require but, instead, what Hormel requires of its 

own employees.

These activities are controlled by the employer for 

the employer's benefit and are integral to the Class 

members' work.

(Emphasis added.) These are just a handful of times the circuit 

court looked at what Hormel required and whether Hormel 

benefited rather than looking to whether the "donning and 

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

principal activity of canning food.

15 The circuit court did not 

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

decision in Integrity Staffing as the circuit court's decision 

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

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

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

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

Staffing is curious.

D. ADDITIONALLY, THE TIME SPENT "DONNING AND DOFFING" THE

"WHITES" DURING MEAL PERIODS IS NOT COMPENSABLE WORK TIME.

¶168 Related to the question of whether "donning and 

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

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

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

compensable. I have already concluded that the "donning and 

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

 

15 Indeed, the circuit court seems to have concluded that 

the "donning and doffing" of the "whites" is indispensable 

because it is required. This is a conflation of the requiredbenefit analysis and the "integral and indispensable" analysis. 
No. 2014AP1880.mjg

23

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

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

analyses of this issue because I believe that neither can square 

their determinations that the "donning and doffing" of the 

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

with their determinations that the exact same "donning and 

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

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

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

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

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

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

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

site, the employee is entitled only to 30 minutes.

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

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

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

premises." The test for whether meal time "donning and doffing" 

is compensable is simple and familiar: meal time "donning and 

doffing" is compensable if it is "integral and indispensable" to 

an employee's principal activity.16

 

16 In an attempt to reach its current outcome, the 

concurring/dissenting opinion distorts the analysis for 

lunchtime "donning and doffing." Although the 

concurring/dissenting opinion believes the "donning and doffing" 

of the whites is "integral and indispensable" to "sanitary food 

production" at the beginning and end of the day, it concludes 

that the same "donning and doffing" of the same "whites" is no 

longer "integral and indispensable" to "sanitary food 

production" when done over the lunch hour. Concurrence/Dissent, 

¶121. The concurring/dissenting opinion states,

(continued)
No. 2014AP1880.mjg

24

¶171 The lead opinion and the concurring/dissenting opinion 

believe that the "donning and doffing" of the "whites" is 

"integral and indispensable" to canning food and, therefore, 

compensable. Except, that is, when the "donning and doffing" 

occurs during the lunch hour instead of at the beginning and end 

of the work day. But the employees' principal activity has not 

changed; it is still canning food. And what is required to be 

"donned and doffed" has not changed; it is still the "whites." 

 

First, no interest of Hormel is served by employees 

leaving its facility during lunch break. Stated 

otherwise, leaving Hormel's facility at lunch does not 

aid in sanitary food production, which is a principal 

activity of Hormel. Second, the choice to leave 

Hormel's facility at lunch is totally each individual 

employee's choice, not Hormel's.

Id., ¶122 (emphasis added). There are two problems with this 

conclusion.

First, the concurring/dissenting opinion focuses on what 

Hormel requires and whether Hormel benefits. As laid out in full 

earlier, conflating the required-benefit test with the "integral 

and indispensable" test goes against the law as clarified by the 

Supreme Court of the United States in Integrity Staffing. 

Second, the concurring/dissenting opinion applies the wrong 

test by focusing on the employees' choice to leave. The test is 

whether the "donning and doffing" of the "whites" when entering 

and exiting the Beloit cannery (whether at the beginning and end 

of the day or at lunch) is "integral and indispensable" to 

canning food. The lead opinion and concurring/dissenting opinion 

say it is at the beginning and end of the day. Common sense 

would dictate that if "donning and doffing" the "whites" is 

"integral and indispensable" to canning food at the beginning 

and end of the day, then it must also be "integral and 

indispensable" to canning food at the middle of the day after 

lunch.
No. 2014AP1880.mjg

25

The only change is the time at which the employee "dons and 

doffs." 

¶172 To say that "donning and doffing" of the "whites" is 

"integral and indispensable" when an employee arrives and leaves 

at the end of the day but is not "integral and indispensable" 

when an employee leaves and arrives at lunch is unsupported by 

the law. If the lead opinion and the concurring/dissenting 

opinion conclude (as they do) that the "donning and doffing" of 

the "whites" is so "integral and indispensable" to canning food 

at the start of the shift at the beginning of the day that it 

must be compensable, then they must also conclude that the 

"donning and doffing" of the "whites" is "integral and 

indispensable" to canning food at the start of the shift after 

the lunch period. The lead opinion and the concurring/dissenting 

opinion somehow do not. In doing so, the lead opinion and the 

concurring/dissenting opinion admit that the "donning and 

doffing" of the "whites" is not truly "integral and 

indispensable" to the employees' principal activity of canning 

food.

E. "DONNING AND DOFFING" IS SOMETIMES COMPENSABLE.

¶173 That the "donning and doffing" of the "whites" is not 

compensable under our specific factual circumstances becomes 

abundantly clear when compared to "donning and doffing" that is 

compensable under other circumstances.

¶174 For instance, some of Hormel's employees are part of a 

sanitation crew; these sanitation crew members "play a real 

critical part in cleaning the entire plant up top to bottom 
No. 2014AP1880.mjg

26

every night . . . ." Employees who work in sanitation wear 

different and additional clothing and equipment:

They will wear--the eyewear is more of a goggles and, 

in addition to a face shield. They also wear--the 

footwear would be different. They're standing in water 

the entire time. So tennis shoes, something like that, 

wouldn't be appropriate. And then they have--we call 

it a rain suit, but it's just a big yellow pants with 

suspenders and a coat that's yellow, too. So it 

protects them. And then they also, I think all of them 

wear arm guards. So you're sealed against the 

chemicals that you work with. Pretty much every job in 

our wet area, you're dealing with chemicals every 

night.

Hormel pays its sanitation workers to "don and doff" this 

additional clothing and equipment because "[the sanitation 

workers] really couldn't do their job without [it]. I mean 

safety and commonsense, everything says that they wouldn't be 

able to safely work out there with all those chemicals without 

this equipment." (Emphasis added.) Simply put, the sanitation 

crew's principal activity is sanitizing the plant, and 

sanitizing the plant necessitates contact with "very caustic or 

acidic" chemicals; therefore, the sanitation crew must wear 

protective gear in order to sanitize the plant with chemicals.17

 

17 Scott A. Ramlo, plant manager at the Beloit cannery, 

testified that some of the chemicals the sanitation crew works 

with are "very caustic or acidic and will cause skin damage, 

irritation." He went on to say the following:

Q. I'm sorry? Now, what, what are the cleaning 

materials please?

A. It can be any number of chemicals, but it's a foam 

that comes from a central foaming station that will 

break the surface tension of the product on to the 

stainless steel. . . . So the foam that he's using 

and applying there is corrosive materials that you 

(continued)
No. 2014AP1880.mjg

27

¶175 Here is a second example. In addition to running a 

cannery, Hormel runs other types of food-related operations. In 

Algona, Iowa, Hormel runs a dry sausage operation, which 

primarily makes pepperonis.18 At trial, Francisco Velaquez, a 

resource and safety manager at Hormel, testified that pepperoni 

is a ready-to-eat meat product that must be produced in a readyto-eat facility. For comparison, plants that produce ready-toeat meat products are considered "high-risk operations" whereas 

canneries are considered "lower risk" because food product at a 

cannery goes through the 12-D cook or acidification processes. 

Because pepperonis are a high-risk, ready-to-eat meat product,

employees at this type of facility must "don and doff"

additional items on top of their "whites" to prevent different 

types of contamination (contamination that is not annihilated 

with a 12-D cook or acidification process).19

 

have to be protected from. And he'll spray that. After 

he's done, a quick rinse of the equipment when he 

first got to it, then he'll come and put that foam 

over the entire, all that equipment. You can see it's 

foam because it clings.

(Emphasis added.)

18 Interestingly, the employees in Tyson Foods primarily 

made pepperonis.

19 Scott Ramlo, plant manager at the Beloit facility, 

testified, "There are certain things that you should probably do 

if you're making bacon or pepperoni or something that somebody's 

going to eat right out of the package versus what we do, which 

is a thermos-processed product that's fully processed in a can, 

very different than some other products."
No. 2014AP1880.mjg

28

¶176 For instance, a high-risk, ready-to-eat meat facility 

is especially concerned with Listeria or Salmonella, which is 

often tracked into a plant by street shoes. To combat those 

risks, "[Hormel] ha[s] [its employees] change into these rubber 

boots. Then [the employees] have to go through something called 

a boot scrubber, and there [Hormel] appl[ies] quaternary 

ammonium" to reduce contamination. Additionally, employees 

"typically have plastic aprons that they put over their 

whites. . . . And then they have these things called sleeve 

guards that are plastic that go up to their elbows, and then 

they have rubber gloves that they wear that they tuck under 

their sleeve guards."

¶177 Employees at these high-risk, ready-to-eat meat 

facilities are paid for the time they spend "donning and 

doffing" their additional gear; that is, they are paid for the 

time it takes to put on, wash, and take off their boots as well 

as the time it takes to put on and take off their aprons, sleeve 

guards, and rubber gloves. The "donning and doffing" of this 

extra gear is compensable because it is "integral and 

indispensable" to producing high-risk, ready-to-eat meat 

products.

¶178 The above two examples help to illustrate exactly what 

the "integral and indispensable" test calls for. Namely, for the 

employer-required activity to be compensable, it must be an 

"intrinsic element" of the activity performed and "one with 

which the employee cannot dispense if he is to perform those 

activities." Integrity Staffing, 135 S. Ct. at 517. A sanitation 
No. 2014AP1880.mjg

29

crew member cannot dispense with his or her extra clothing and 

equipment due to the "very caustic or acidic" chemicals he or 

she is exposed to while performing his or her principal 

activities of cleaning and sanitizing. A ready-to-eat meat 

facility employee cannot dispense with his or her extra clothing 

and equipment due to the high-risk nature of certain types of 

contamination at a ready-to-eat meat facility. But a cannery 

employee at a "lower risk" facility can dispense with wearing 

"whites" and still safely produce clean food.

¶179 In sum, Hormel's own employees put it best when they 

testified, and the circuit court found that "there is nothing 

essential about the clothes Hormel required them to wear in 

order to get their job done." (Emphasis added.) I agree with 

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

not "integral and indispensable" to the Beloit employees' 

principal activity of canning food; therefore, the time spent 

"donning and doffing" the "whites" is not compensable.

III. WHAT THE LEAD OPINION DOES NOT DECIDE: THE DE MINIMIS NON 

CURAT LEX DOCTRINE.

¶180 I now turn to the second issue: whether the 

requirement for compensation for time spent "donning and 

doffing" would be obviated by the doctrine of de minimis non 

curat lex ("the law doesn't care about trifles"). Because I have 

concluded that the employees "donning and doffing" of the 

"whites" is not compensable, I need not consider whether the 

time spent "donning and doffing" is de minimis. 

¶181 However, I write to point out that the lead opinion, 

while pretending to engage in a de minimis-like discussion, does 
No. 2014AP1880.mjg

30

not actually answer the question before us. Specifically, the 

lead opinion does not determine whether the de minimis doctrine 

applies in Wisconsin, does not explain what test or approach it 

used to reach its conclusion, and thus, does not provide any 

guidance for courts and parties moving forward. We grant review 

of cases only when "special and important reasons are presented" 

and when a decision will help "develop, clarify or harmonize the 

law." Wis. Stat. § 809.62(1r),(1r)(c). In choosing not to answer 

the question before this court, the lead opinion fails to help 

"develop, clarify or harmonize the law." As a result, while this 

case is decided by the lead opinion for these employees at this 

facility, the issue of whether the de minimis doctrine applies 

in Wisconsin and how a de minimis determination would be 

conducted lives on.20

¶182 The de minimis doctrine simply asks the following: 

should all "integral and indispensable" activities, including 

those that last a single second or a handful of seconds or 

minutes be recorded by and paid for by an employer? See Anderson 

 

20 As stated previously, we were called upon to determine 

whether the de minimis doctrine applies in Wisconsin. This was a 

question of first impression for this court. The 

concurring/dissenting opinion appears to adopt the de minimis

doctrine in Wisconsin. It states, "I adopt and apply the Lindow

test . . . .," concurrence/dissent, ¶130, and "If the time 

allocated for donning and doffing were not cabined at a 

specified number of minutes per employee per workday, the de 

minimis rule would preclude compensation . . . .," id., ¶109. 

But the concurring/dissenting opinion fails to explain why it 

chooses to adopt the de minimis doctrine in Wisconsin. Similar 

to choosing not to answer the question at all, blind adoption of 

the doctrine without any explanation fails to help "develop, 

clarify or harmonize the law." Wis. Stat. § 809.62(1r),(1r)(c).
No. 2014AP1880.mjg

31

v. Mt. Clements Pottery Co., 328 U.S. 680, 692 (1946) ("Splitsecond absurdities are not justified by the actualities of 

working conditions . . . ."). Or are there ever activities that 

take such a small, trivial amount of time that a court should 

not expect an employer to keep track of and compensate for this 

time? See JCG Industries, 745 F.3d at 842, 841 (noting that 

"[c]ommon sense has a place in adjudication" and commenting that 

"[o]ne reason to withhold a remedy is that the harm is small but 

measuring it for purposes of calculating a remedy would be 

difficult, time-consuming, and uncertain, hence not worthwhile 

given that smallness"); Lindow v. United States, 738 F.2d 1057, 

1062 (9th Cir. 1984) ("[C]ommon sense must be applied to the 

facts of each case."). The Supreme Court of the United States 

answered the de minimis question by holding that "[w]hen the 

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

beyond the scheduled working hours, such trifles may be 

disregarded." Anderson, 328 U.S. at 692. 

¶183 As a result, when a federal court determines that the 

time spent on an activity is compensable because it is "integral 

and indispensable," the court next determines whether that 

compensable time is rendered non-compensable by the de minimis

doctrine. See id. at 693; Lindow, 738 F.2d at 1062 ("As a 

general rule, employees cannot recover for otherwise compensable 

time if it is de minimis."). In contrast, when a federal court 

determines that the time spent on the activity is not "integral 

and indispensable," the court's analysis ends and no 

compensation is due. See Integrity Staffing, 135 S. Ct. at 515 
No. 2014AP1880.mjg

32

(concluding that the activity was not "integral and 

indispensable" and, therefore, not proceeding to a de minimis

analysis). We have never before determined whether we should 

take this same approach in Wisconsin.21 We were called upon to 

make that determination in this case.

¶184 Because the lead opinion concludes that the employees 

"donning and doffing" of the "whites" is compensable, it could 

have engaged in a full discussion of whether the de minimis

doctrine applies in Wisconsin.22 But it did not. To quote the 

lead opinion,

 

21 If we adopt this approach, then one possible way of 

resolving this issue would be as follows: (1) if a court 

concludes that an activity is not "integral and indispensable," 

then the analysis ends and no compensation is owed; but (2) if a 

court concludes that an activity is "integral and 

indispensable," then it must next consider whether the time 

spent on that activity is so short in duration that it qualifies 

as de minimis, in which case the time is not compensable. Under 

this approach, because the lead opinion and the 

concurring/dissenting opinion concluded that the time spent 

"donning and doffing" is "integral and indispensable," they 

would need to then consider whether that time is so short in 

duration that it qualifies as de minimis. If it qualifies as de 

minimis, then no compensation is due.

22 Simply put, the lead opinion had an abundance of options 

in this case, but it chose none. The lead opinion could have 

concluded that the de minimis doctrine does not apply in 

Wisconsin. The lead opinion could have concluded that the de 

minimis doctrine applies in Wisconsin and then provided a 

practical framework for how to conduct a de minimis analysis. 

The lead opinion could have concluded that the de minimis

doctrine applies and then held that the 2.903 minutes spent 

donning and doffing each day was too long in duration to qualify 

as de minimis. Rather than choose any of the above options, the 

lead opinion picked an outcome and reached a conclusion for 

these litigants on this day.
No. 2014AP1880.mjg

33

Assuming, without deciding, that the de minimis

doctrine is applicable to claims under Wis. Admin. 

Code § 272.12, we conclude that in the instant case, 

the de minimis doctrine does not bar compensation for 

the time spent donning and doffing the required 

clothing and equipment because the time spent donning 

and doffing is not a "trifle."

Lead op., ¶98 (emphasis added).23 Why assume without deciding? 

The question was certified by the court of appeals, the parties 

spent roughly 17 pages of their respective briefs on the issue, 

and the parties addressed this issue during oral argument before 

this court. Perhaps the lead opinion chooses not to answer the 

question because it cannot reach its present outcome given what 

the law is.

¶185 The law is this. The Supreme Court of the United 

States first applied the de minimis doctrine in Anderson v. Mt. 

Clements Pottery Co., 328 U.S. 680 (1946). There, the employees 

alleged that their employers' method of calculating hours did 

not "accurately reflect all the time actually worked and that 

they were thereby deprived of" proper overtime compensation. 

Anderson, 328 U.S. at 684. The employees wanted their walk time 

to and from their workstations as well as their "donning and 

doffing" of work clothing included in their work hours. Id. at 

682-83.

¶186 In resolving that question, the Court noted,

 

23 The concurring/dissenting opinion also notes that the 

lead opinion dodges the question of whether the de minimis

doctrine applies in Wisconsin: "The lead opinion concludes that 

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

not de minimis, assuming that the de minimis rule may be applied

to the Union's claims." Concurrence/Dissent, ¶1125 (emphasis 

added).
No. 2014AP1880.mjg

34

When the matter in issue concerns only a few seconds 

or minutes of work beyond the scheduled working hours, 

such trifles may be disregarded. Split-second

absurdities are not justified by the actualities of 

working conditions or by the policy of the Fair Labor 

Standards Act. It is only when the employee is 

required to give up a substantial measure of his time

and effort that compensable working time is involved.

Id. at 692 (emphasis added). Later in the opinion, the Court 

reiterated, "it is appropriate to apply a de minimis doctrine so 

that insubstantial and insignificant periods of time spent in 

preliminary activities need not be included in the statutory 

workweek. Id. at 693 (emphasis added). The Anderson Court's 

focus was on time, specifically whether the activity took just 

"a few seconds or minutes." See also Lindow, 738 F.2d at 1062 

("An important factor in determining whether a claim is de 

minimis is the amount of daily time spent on the additional 

work.").

¶187 While making sure to explain that it is not deciding 

whether the de minimis doctrine applies in Wisconsin, the lead 

opinion nevertheless discusses the doctrine and pays lip service 

to Anderson by quoting its use of the word "trifle." But 

unsurprisingly the lead opinion chooses not to apply Anderson's 

test.24 Instead, the lead opinion cherry-picks one factor (not 

 

24 Again unsurprisingly, the concurring/dissenting opinion 

also gives Anderson, the Supreme Court of the United States 

decision that created the de minimis doctrine, a fleeting 

glance. The concurring/dissenting opinion mentions Anderson a 

meager three times in its entire de minimis discussion, which 

spans approximately five pages. See Concurrence/Dissent, ¶¶126, 

128, 131. Rather than rely on a Supreme Court decision, the 

concurring/dissenting opinion roots its analysis in a Ninth 

Circuit opinion, Lindow v. United States, 738 F.2d 1057 (9th 

Cir. 1984). In fact, the concurring/dissenting opinion formally 

(continued)
No. 2014AP1880.mjg

35

found in Anderson) in which to ground its conclusion.25 The lead 

opinion states,

[i]n the instant case, employees spend approximately 

24 hours per year donning and doffing. Viewed in light 

of the employees' hourly rate of $22 per hour, the 

unpaid period in question may amount to over $500 per 

year for each employee and substantial sums for 

Hormel. We agree with the circuit court that in the 

instant case this time is not a "trifle."

Lead op., ¶102 (emphasis added).26

 

"adopt[s] and appl[ies] the Lindow test." Concurrence/Dissent, 

¶130. 

Lindow is cited by federal courts for its four-factor de 

minimis approach. Under Lindow, a de minimis determination looks 

at (1) the amount of daily time spent on the additional work, 

(2) the administrative difficulty in recording that additional 

time, (3) the aggregate amount of compensable time, and (4) the 

regularity of the additional work. 738 F.2d at 1062-63. Missing 

from the concurring/dissenting opinion's discussion of Lindow is 

a critical quote from Lindow: "Most courts have found daily 

periods of approximately 10 minutes de minimis even though 

otherwise compensable." Id. at 1062. Lindow itself stands for 

the proposition that the 7 to 8 minutes employees spent on 

activities qualified as de minimis. Id. at 1063-64.

25 The lead opinion does not cite Lindow, but it arguably is 

where the lead opinion hand-picked the aggregate sum factor. If 

so, the lead opinion conveniently forgot to look at the first 

factor: "the amount of daily time spent on the additional work." 

Lindow, 738 F.2d at 1062 (emphasis added).

26 The concurring/dissenting opinion also utilizes an 

aggregate sum factor: "In addition, although 5.7 minutes per day 

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

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

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

aggregate amount for all food preparation employees." 

Concurrence/Dissent, ¶136 (emphasis added). Not only is the lead 

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

outcome oriented choice to ground their analyses in an aggregate 

sum factor not supported by the law (namely, Anderson), but also 

their outcome leads to disparate treatment under the law. A de 

minimis analysis that is focused on a dollar figure will favor 

(continued)
No. 2014AP1880.mjg

36

¶188 Hidden in the lead opinion's language is a conclusion 

that is at odds with the law: that 2.903 minutes is not de 

minimis. The lead opinion cannot state outright that 2.903 

minutes is not de minimis because it would be hard-pressed to 

reconcile that determination with the fact that Anderson

designed the de minimis doctrine to preclude compensation when 

"the matter in issue concerne[d] only a few seconds or minutes

of work." 328 U.S. at 692 (emphasis added). Moreover, it cannot 

state outright that 2.903 minutes is not de minimis because it 

would have to face the fact that "[m]ost courts have found daily 

periods of approximately 10 minutes de minimis even though 

otherwise compensable." Lindow, 738 F.2d at 1062 (emphasis 

added) (holding that the 7 to 8 minutes the employees spent on a 

pre-shift activity in that case was de minimis and citing a 

litany of cases for the proposition that daily periods of 10 

minutes or less are de minimis).

 

those employees who are paid a higher wage. Employees who make 

only $5 per hour and file a wage and hour claim will have their 

aggregate sum declared de minimis, but employees who make $22 

per hour will have their aggregate sum declared not de minimis. 

Perhaps this is why Anderson's focus was on time, and whether 

the activity concerned just a few "minutes or seconds."
No. 2014AP1880.mjg

37

¶189 If the lead opinion were to actually answer the 

question of whether the de minimis doctrine is a part of 

Wisconsin law, then it would have to focus on——or at the very 

least discuss——the amount of daily time spent on "donning and 

doffing" (here, 2.903 minutes) and whether that time qualifies 

as just a few "seconds or minutes." The lead opinion tiptoes 

past this quagmire by sidestepping the question entirely.27

 

27 The concurring/dissenting opinion also creeps past the 

time predicament but does so in a different way. The 

concurring/dissenting opinion concludes, 

If the time allocated for donning and doffing were not 

cabined at a specified number of minutes per employee 

per workday, the de minimis rule would preclude 

compensation because keeping accurate payroll records 

of the varying time that each employee spends donning 

and doffing would appear to be a nearly impossible 

administrative task for Hormel.

Concurrence/Dissent, ¶109. In sum, because the parties 

stipulated to 5.7 minutes, 5.7 minutes is not de minimis. 

Otherwise, 5.7 minutes would be de minimis. According to the 

concurring/dissenting opinion, this time becomes de minimis if 

it is not cabined because "if Hormel were required to record for 

payroll purposes the varying amounts of the time that each 

individual employee expends to don and doff at the beginning and 

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

administrative impossibility to do so accurately." Id., ¶132; 

see also id., ¶¶ 109, 135, 138, 140.

The problem with the concurring/dissenting opinion's 

conclusion that it "would appear to be" an administrative 

impossibility to accurately record the time is that the circuit 

court made the exact opposite finding of fact in its opinion and 

order. The circuit court spent nearly two and a half pages in 

its order and opinion specifically addressing whether it would 

be administratively difficult for Hormel to accurately record 

"donning and doffing" time. Indeed, the section of the circuit 

(continued)
No. 2014AP1880.mjg

38

Consequently, the question is left unanswered and Wisconsinites 

are left wondering.

¶190 In sum, the lead opinion could have resolved the issue 

of whether the de minimis doctrine applies in Wisconsin, and it 

could have provided a workable test or approach for how to 

conduct a de minimis analysis. It chose not to. When we accept a 

case, we do so to help "develop, clarify, or harmonize the law." 

As such, the lead opinion owed the people of Wisconsin and the 

parties a full and thorough discussion on whether the de minimis

doctrine applies in Wisconsin as well as a discussion on the 

proper method or approach for conducting a de minimis analysis.

 

court's opinion and order is titled "Practical Administrative 

Difficulties." There, the court stated, 

Despite carrying the burden of proof on the de minimis 

issue, I find that Hormel has not provided credible 

evidence of administrative difficulties which may be 

encountered if it is required to record the additional 

donning and doffing time. As a result, factor two [of 

the Lindow test] also falls in favor of the Class.

(Emphasis added.) Later, the circuit court again emphasized that 

"the vague and unsubstantiated opinions of Hormel employees 

about the administrative difficulties of reimbursing the Class 

members for donning and doffing are belied by the daily 

activities at the Beloit Hormel plant. . . . Hormel's processes 

show that it is able to monitor [employees] adequately." 

(Emphasis added.) Thus, the concurring/dissenting opinion's 

conclusion that it "would appear to be" an administrative 

impossibility to record the time spent "donning and doffing" is 

directly contrary to the circuit court's explicit finding of 

fact on that point. The concurring/dissenting opinion "appears" 

to ignore the circuit court's opposite finding of fact, as it 

fails to acknowledge the circuit court's factual finding and 

fails to provide any discussion of whether the circuit court's 

finding would be clearly erroneous.
No. 2014AP1880.mjg

39

Because the lead opinion elects to leave today's question 

unanswered, it short-changes the people of Wisconsin.

IV. CONCLUSION

¶191 I cannot join the lead opinion because I believe it 

reaches the wrong conclusion as to whether the "donning and 

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

reaches no determination as to whether the de minimis doctrine 

is a part of Wisconsin law or how a de minimis analysis is to be 

conducted in future cases.

¶192 For the reasons stated, I respectfully dissent.

¶193 I am authorized to state that Justice ANNETTE 

KINGSLAND ZIEGLER joins this dissent.
No. 2014AP1880.mjg

40
No. 2014AP1880.mjg

41
No. 2014AP1880.mjg

42
No. 2014AP1880.mjg

1