2020 WI 28

SUPREME COURT OF WISCONSIN

CASE NO.: 2018AP1681

COMPLETE TITLE: Steven J. Piper, Robert Bue, Scott R. Olson and 

Leslie T. Smith,

 Plaintiffs,

Jonathon Kracht, Gary Benes and Charles Manley,

 Plaintiffs-Respondents,

 v.

Jones Dairy Farm,

 Defendant-Appellant.

ON BYPASS FROM THE COURT OF APPEALS

OPINION FILED: March 19, 2020 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: October 28, 2019 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Jefferson 

JUDGE: William F. Hue 

JUSTICES:

DALLET, J., delivered the majority opinion of the Court, in which 

ANN WALSH BRADLEY, KELLY, and HAGEDORN, JJ., joined. ZIEGLER, J., 

filed a dissenting opinion, in which ROGGENSACK, C.J., joined. 

REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.

NOT PARTICIPATING:

 

ATTORNEYS:

For the defendant-appellant, there were briefs (in the court 

of appeals) filed by Bernard J. Bobber, Keith E. Kopplin, Christina 

L. Wabiszewski and Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 

Milwaukee. There was an oral argument by Bernard J. Bobber.

For the plaintiffs-respondents, there was a brief (in the 

court of appeals) filed by Micheal J. Modl and Axley Brynelson, 

LLP, Madison and Douglas J. Phebus, Victor Arellano, and Arellano 
2

& Phebus, S.C., Middleton. There was an oral argument by Michael 

J. Modl.
2020 WI 28

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2018AP1681

(L.C. No. 2010CV1210)

STATE OF WISCONSIN : IN SUPREME COURT

Steven J. Piper, Robert Bue, Scott R. Olson and 

Leslie T. Smith,

 Plaintiffs,

Jonathon Kracht, Gary Benes and Charles Manley,

 Plaintiffs-Respondents,

 v.

Jones Dairy Farm,

 Defendant-Appellant.

FILED

MAR 19, 2020

Sheila T. Reiff

Clerk of Supreme Court

DALLET, J., delivered the majority opinion of the Court, in which 

ANN WALSH BRADLEY, KELLY, and HAGEDORN, JJ., joined. ZIEGLER, J., 

filed a dissenting opinion, in which ROGGENSACK, C.J., joined. 

REBECCA GRASSL BRADLEY, J., filed a dissenting opinion. 

APPEAL from an order of the Circuit Court for Jefferson 

County, William F. Hue, Judge. Affirmed in part, reversed in part, 

and cause remanded. 

¶1 REBECCA FRANK DALLET, J. Current and former employees 

of Jones Dairy Farm (the employees) filed suit in December 2010 

seeking unpaid wages for time spent at the start and end of their 
No. 2018AP1681 

2

shifts "donning and doffing" personal protective equipment and 

walking to and from their workstations. Jones Dairy Farm (JDF) 

denied liability, alleging the employees bargained over their 

right to compensation for this time during collective bargaining 

negotiations. Alternatively, JDF asserted that the doctrine of 

de minimis non curat lex rendered this time non-compensable and 

that equitable defenses precluded the employees' recovery of 

damages. The circuit court denied JDF's motion for summary 

judgment, concluding that: (1) the donning and doffing time was 

compensable; (2) the employees could not modify or eliminate

compensation for donning and doffing through collective 

bargaining; (3) the time was not rendered non-compensable by the

de minimis doctrine; and (4) JDF's four equitable defenses did not 

preclude the employees' recovery of damages.1

¶2 On bypass from the court of appeals,2 JDF presents one 

principal issue: under Wisconsin law can compensation for donning 

and doffing personal protective equipment be modified or 

eliminated through collective bargaining? In the alternative, JDF 

contends that the de minimis doctrine renders the donning and 

doffing time non-compensable and that the equitable defenses of 

promissory estoppel, waiver, laches, and unjust enrichment

preclude the employees' recovery of damages. 

 

1 Judge William F. Hue of Jefferson County Circuit Court 

presided.

2 Jones Dairy Farm filed a petition to bypass pursuant to Wis. 

Stat. (Rule) § 809.60 (2017-18). All subsequent references to the 

Wisconsin Statutes are to the 2017-18 version unless otherwise 

indicated.
No. 2018AP1681 

3

¶3 We conclude that under Wisconsin law, compensation for 

donning and doffing cannot be modified or eliminated through 

collective bargaining. We assume without deciding that the

de minimis doctrine applies to claims arising under Wis. Admin. 

Code § DWD 272.12 (May 2019),3 and determine that the time the 

employees spent donning and doffing was not de minimis. Lastly, 

we conclude that the circuit court erroneously exercised its 

discretion when it summarily dismissed JDF's equitable defenses on 

the basis of Wis. Stat. § 109.03(5) and we remand for full 

consideration of those defenses. We therefore affirm in part, 

reverse in part, and remand the case to the circuit court. 

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶4 JDF operates a food production plant in Fort Atkinson, 

Wisconsin. JDF requires its employees to wear personal protective 

equipment, including safety footwear, frocks, hairnets, aprons, 

ear plugs, and plastic bump caps. The employees are required to 

put on (don) and take off (doff) company-required equipment at the 

beginning and end of their shifts.

¶5 The employees' wages have historically been set by a 

collective bargaining agreement between the United Food and 

Commercial Workers International Union, Local 538 (the Union) and 

JDF. The 1979 collective bargaining agreement between the parties 

expressly compensated the employees for donning and doffing their 

personal protective equipment. As part of the collective 

bargaining negotiations, in 1982, the parties stipulated that the 

 

3 All subsequent references to the Wis. Admin. Code ch. DWD 

272 are to the May 2019 register date unless otherwise indicated.
No. 2018AP1681 

4

"daily credit" of compensated donning and doffing time would be 

reduced from 12 minutes to six minutes. In 1985, JDF and the Union 

agreed to eliminate the provision that compensated the employees

for donning and doffing. In 1994, the Union proposed that JDF 

once again compensate the employees for 12 minutes of donning and 

doffing time. At some point during the negotiations, the Union 

withdrew the proposal. Collective bargaining resulted in an 

increase in the employees' base wages of $.60/hour. 

¶6 When the parties reconvened for negotiations in 1997,

the Union once again proposed 12 minutes of compensated time for 

donning and doffing. The Union later withdrew the proposal and 

collective bargaining resulted in an increase in the employees' 

base wages of $.90/hour. Again, when the collective bargaining 

agreement expired in 2000, the Union made a proposal for 

compensated donning and doffing time, which it later withdrew. 

This time, collective bargaining resulted in the employees 

receiving a base wage increase of $1.50/hour. The same pattern 

occurred in 2004 and 2009: the Union's proposal was withdrawn,

and base wages were ultimately increased by $1.25/hour.4 

¶7 JDF asserts that this extensive bargaining history 

demonstrates that the Union withdrew its proposals for 

compensation for donning and doffing in exchange for an increase 

in base wages. However, it admitted at oral argument that the 

 

4 In 2006, the Union sent JDF a letter declaring that failure 

to compensate the employees for donning and doffing and walking to 

workstations violated the law and "must be remedied immediately." 

The Union did not follow up or file a related grievance or wage 

claim with the Department of Workforce Development (DWD).
No. 2018AP1681 

5

record established "no direct tie" between the Union's withdrawal 

of the proposal and the employees receiving an increase in base 

wages.

¶8 In 2010, the employees filed this suit seeking unpaid 

wages for time spent donning and doffing personal protective 

equipment and walking to and from their workstations.5 In 

response, JDF pleaded numerous affirmative defenses, including 

promissory estoppel, waiver, laches, and unjust enrichment. The 

parties stipulated that the total time employees spent donning and 

doffing was 4.3 minutes per day.6 The stipulation also included 

the amount of time the employees spent walking to and from their 

workstations, up to 4.33 minutes per day. The agreed-upon relevant 

time period at issue for the employees' claims was December 10, 

2008, to November 25, 2013.7 

¶9 JDF moved for summary judgment alleging that the Union 

repeatedly proposed wages for donning and doffing during 

collective bargaining negotiations and withdrew its proposals in 

 

5 The employees filed a class action made up of approximately 

227 current and former employees. The employees and JDF stipulated 

to the certification of four subclasses based upon the type of 

work that the employees performed. 

6 The only exception was for the employees who worked in the 

shipping department, where the vast majority of donning and doffing 

activities were not required.

7 In August 2013 the court of appeals concluded that donning 

and doffing was compensable time under the "plain terms of the DWD 

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

¶2, 350 Wis. 2d 380, 838 N.W.2d 502. Several months later, on

November 25, 2013, JDF began compensating its employees for donning 

and doffing. 
No. 2018AP1681 

6

exchange for higher base wages. In the alternative, JDF asserted 

that the time was rendered non-compensable by the de minimis 

doctrine and that recovery of damages was precluded by the 

equitable defenses of promissory estoppel, waiver, laches, and 

unjust enrichment.

¶10 The circuit court determined that pursuant to United 

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

2016 WI 13, 367 Wis. 2d 131, 876 N.W.2d 99, the time employees 

spent donning and doffing was compensable. The circuit court 

further concluded that "there is no exception under Wisconsin law 

permitting collective bargaining to modify or eliminate" 

compensation for donning and doffing. Finally, the circuit court 

decided that the donning and doffing time here was not de minimis

and that JDF's four equitable defenses did not preclude the 

employees' recovery of damages. 

¶11 JDF petitioned this court for bypass of the court of 

appeals, which we granted. 

II. STANDARD OF REVIEW

¶12 We review a decision on summary judgment using the same 

methodology as the circuit court. Green Spring Farms 

v. Kersten, 136 Wis. 2d 304, 314-15, 401 N.W.2d 816 (1987). 

Summary judgment shall be granted where the record demonstrates

"that there is no genuine issue as to any material fact and that 

the moving party is entitled to a judgment as a matter of law." 

Wis. Stat. § 802.08(2). 
No. 2018AP1681 

7

¶13 This case involves interpretation and application of 

Wis. Admin. Code § DWD 274.05 (April 2018).8 We interpret an 

administrative regulation using the rules of statutory 

interpretation. Hormel Foods Corp., 367 Wis. 2d 131, ¶30. While 

we benefit from the analysis of the circuit court, the 

interpretation of an administrative regulation is a question of 

law which this court reviews de novo. State v. Brown, 2006 WI 

131, ¶18, 298 Wis. 2d 37, 725 N.W.2d 262. 

¶14 We also examine the circuit court's discretionary 

determination as to the applicability of JDF's four equitable 

defenses, which we review under an erroneous exercise of discretion

standard. See Johnson v. Cintas Corp. No. 2, 2012 WI 31, ¶22, 339 

Wis. 2d 493, 811 N.W.2d 756. A circuit court erroneously

exercises its discretion when it applies an improper legal standard

or makes a decision not reasonably supported by the facts of 

record. Id.; State v. McConnohie, 113 Wis. 2d 362, 371, 334 

N.W.2d 903 (1983). 

III. ANALYSIS

¶15 We initially consider whether, under Wisconsin law, 

compensation for donning and doffing can be modified or eliminated 

through collective bargaining. We next address JDF's contention 

that the time spent donning and doffing was rendered noncompensable by the de minimis doctrine. Finally, we resolve 

 

8 All subsequent references to the Wis. Admin. Code ch. DWD 

274 are to the April 2018 register date unless otherwise indicated.
No. 2018AP1681 

8

whether the circuit court erred in concluding that Wis. Stat. 

§ 109.03(5) barred JDF's four equitable defenses. 

A. An employee's right to compensation for donning and 

doffing personal protective equipment cannot be modified or 

eliminated through collective bargaining.

¶16 The main issue presented on appeal is: under Wisconsin 

law, can compensation for donning and doffing personal protective 

equipment be modified or eliminated through collective bargaining? 

Because time spent donning and doffing comprises "hours worked"

under Wis. Admin. Code. § DWD 272.12, and the law does not exempt 

donning and doffing from the statutory requirement that employees 

be paid for all hours worked, the answer is no. Contrary to JDF's 

argument, neither Aguilar v. Husco International, Inc., 2015 WI 

36, 361 Wis. 2d 597, 863 N.W.2d 556, nor Hormel Foods Corp., 367 

Wis. 2d 131, indicate otherwise. 

¶17 DWD is charged with "adopt[ing] reasonable and proper 

rules and regulations" related to wage and labor laws in Wisconsin. 

See Wis. Stat. § 103.005(1). DWD regulations determining an 

employee's hours worked for purposes of compensation are found in 

Wis. Admin. Code § DWD 272.12. This section requires employees to 

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."9 Compensable time is defined as "the time on any 

 

9 "Administrative rules enacted pursuant to statutory 

rulemaking authority have the force and effect of law in 

Wisconsin." Staples v. DHSS, 115 Wis. 2d 363, 367, 340 N.W.2d 194 

(1983).
No. 2018AP1681 

9

particular workday at which such employee commences their 

principal activity or activities." § DWD 272.12(1)(a)2. The term 

"principal activity" "includes all activities which are an 

integral part of a principal activity."10 § DWD 272.12(2)(e)1. 

¶18 We first address whether the employees' time spent

donning and doffing personal protective equipment at the beginning 

and end of the workday is an integral part of a "principal 

activity" pursuant to Wis. Admin. Code § DWD 272.12(2)(e) and is 

therefore compensable. In Tyson Foods, the court of appeals 

concluded that donning and doffing personal protective equipment 

within the prepared food industry was an "integral part of a 

principal activity," and therefore compensable. Weissman v. Tyson 

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

N.W.2d 502 ("Tyson Foods"). In Hormel Foods Corp., a majority of 

this court adopted the reasoning of Tyson Foods, and concluded 

that donning and doffing protective clothing and equipment at the 

beginning and end of the day11 was compensable because it was an 

 

10 The regulation provides three examples of what "is meant 

by an integral part of a principal activity." Wis. Admin. Code 

§ DWD 272.12(2)(e)1. The third example is a chemical plant worker 

who dons and doffs clothing and equipment at the beginning and end 

of his shift. See § DWD 272.12(2)(e)1.c.

11 The parties in Hormel Foods Corp. also stipulated to the 

employees' time spent walking to and from the workstations. The 

lead opinion reasoned that "the time spent walking to or from 

workstations or washing hands occurs after the employees' 

'workday' begins and is thus compensable." United Food & 

Commercial Workers Union, Local 1473 v. Hormel Foods Corp., 2016 

WI 13, ¶21 n.6, 367 Wis. 2d 131, 876 N.W.2d 99 (Abrahamson, J., 

joined by Ann Walsh Bradley, J.).
No. 2018AP1681 

10

integral part of the principal activity of food production.12 See

Hormel Foods Corp., 367 Wis. 2d 131, ¶78 (Abrahamson, J., joined 

by Ann Walsh Bradley, J.) ("[W]e 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."); id., ¶108 

(Roggensack, C.J., concurring in part, dissenting in part, joined 

by Prosser, J.) ("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' . . . for which 

compensation is required." (internal footnotes omitted)). 

¶19 In this case, the personal protective equipment that the 

employees are required to don and doff is similar to that in Hormel 

Foods Corp. and Tyson Foods, and the activities of the employees 

likewise occur within the food production industry. We clarify 

that the employees' time spent donning and doffing personal 

protective equipment at the beginning and end of the workday in 

this case is an "integral part of a principal activity," and is 

therefore compensable under Wis. Admin. Code § DWD 272.12(2)(e).13 

 

12 The main dispute between the lead opinion and Chief Justice 

Roggensack's concurrence/dissent in Hormel Foods Corp. was whether 

the donning and doffing was compensable when it occurred over the 

lunch hour. See, e.g., Hormel Foods Corp., 367 Wis. 2d 131, ¶109.

13 JDF conceded at oral argument that the time employees spent 

donning and doffing was compensable pursuant to Tyson Foods, 350 

Wis. 2d 380, and Hormel Foods Corp., 367 Wis. 2d 131.
No. 2018AP1681 

11

¶20 We next resolve whether compensation for donning and 

doffing can nonetheless be modified or eliminated through 

collective bargaining. The Wisconsin Statutes provide that an 

employer may not contractually avoid its obligation to pay an 

employee for all compensable time. See Wis. Stat. §§ 109.03(1), 

109.03(5); Kieninger v. Crown Equip. Corp., 2019 WI 27, ¶15 & n.7, 

386 Wis. 2d 1, 924 N.W.2d 172. There is no Wisconsin statute or

DWD regulation that expressly allows an employer to modify or 

eliminate compensation for donning and doffing personal protective 

equipment. This is in contrast to the federal Fair Labor Standards 

Act (FLSA), which specifically permits collective bargaining over 

compensation for donning and doffing, 29 U.S.C. § 203(o) (2012).14 

Although Wisconsin's wage law is modeled after the FLSA, there is 

no Wisconsin statute or regulation that is equivalent to § 203(o). 

See Hormel Foods Corp., 367 Wis. 2d 131, ¶76 ("No counterpart to 

29 U.S.C. § 203(o) exists in Wisconsin law.").

 

14 Congress amended the Fair Labor Standards Act in 1947 to 

add what is now 29 U.S.C. § 203(o). That provision provides:

In determining for the purposes of sections 206 and 207 

of this title the hours for which an employee is 

employed, there shall be excluded any time spent in 

changing clothes or washing at the beginning or end of 

each workday which was excluded from measured working 

time during the week involved by the express terms of or 

by custom or practice under a bona fide collectivebargaining agreement applicable to the particular 

employee.

See Sandifer v. U.S. Steel Corp., 571 U.S. 220, 226 (2014) (noting 

that § 203(o) "provides that the compensability of time spent 

changing clothes . . . is a subject appropriately committed to 

collective bargaining").
No. 2018AP1681 

12

¶21 JDF maintains that even though there is no express 

exception in Wisconsin law permitting collective bargaining over 

compensation for donning and doffing, a combination of two 

footnotes in separate writings in Hormel Foods Corp., 367 

Wis. 2d 131, indicates that a majority of the court has stated 

otherwise. JDF cites to one footnote from the concurrence/dissent 

of Chief Justice Roggensack which states:

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. [U.S.] Steel 

Corp., [571] U.S. [220], 134 S. Ct. 870, 878-79, 187 

L.E.2d 729 (2014).

See Hormel Foods Corp., 367 Wis. 2d 131, ¶113 n.6 (Roggensack, 

C.J., concurring in part, dissenting in part, joined by Prosser, 

J.). JDF also cites to a footnote in Justice Gableman's dissent 

which states:

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 [collective 

bargaining 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. . . .

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.

Hormel Foods Corp., 367 Wis. 2d 131, ¶145 n.3 (Gableman, J.,

dissenting, joined by Ziegler, J.).
No. 2018AP1681 

13

¶22 For a number of reasons, these two footnotes do not 

provide support for JDF's claim that compensation for donning and 

doffing can be modified or eliminated through collective 

bargaining. First and foremost, whether compensation for donning 

and doffing can be modified or eliminated through collective 

bargaining was not at issue in Hormel Foods Corp., 367 Wis. 2d 131. 

Instead, the court addressed two issues: (1) whether donning and 

doffing of company-required clothing and equipment was compensable 

time under Wis. Admin. Code § DWD 272.12(2)(e); and (2) even if 

that time was otherwise compensable, whether it was rendered noncompensable under the de minimis doctrine. Hormel Foods Corp., 

367 Wis. 2d 131, ¶4. The issue of whether the parties bargained 

over compensation for donning and doffing was not raised by the 

parties.15 Four Justices' views on an un-briefed issue, contained 

in separate writings that include those dissenting from the 

judgment, cannot signify a majority of this court. See State v. 

Griep, 2015 WI 40, ¶37 n.16, 361 Wis. 2d 657, 863 N.W.2d 567 

("Under Marks, the positions of the justices who dissented from 

the judgment are not counted in examining the divided opinions for 

holdings.") (citing Marks v. United States, 430 U.S. 188, 193 

(1977)); see also State v. Coffee, 2020 WI 1, ¶70 n.1, 389 

Wis. 2d 627, 937 N.W.2d 579 (Ann Walsh Bradley, J., dissenting) 

("Although the vitality of Griep has been called into question, 

currently it remains in force."). 

 

15 JDF critiques the lead opinion in Hormel Foods Corp., 367 

Wis. 2d 131, for not addressing the issue, while simultaneously 

acknowledging that the issue was not raised by the parties. 
No. 2018AP1681 

14

¶23 Additionally, these two footnotes rely upon Aguilar, 361 

Wis. 2d 597, federal law, and Wis. Admin. Code § DWD 274.05 as 

support. As we will illustrate, § DWD 274.05 and federal law do 

not apply to this case,16 and Aguilar is distinguishable. 

¶24 Wisconsin Admin. Code § DWD 274.05 is the sole basis for 

obtaining a waiver or modification of Wisconsin wage law 

requirements pursuant to a collective bargaining agreement. It

provides:

Except as provided in [§] DWD 274.08, where a 

collectively bargained agreement exists, the department 

may consider the written application of labor and 

management for a waiver or modification to the 

requirements of this chapter based upon practical 

difficulties or unnecessary hardship in complying 

therewith. If the department determines that in the 

circumstances existing compliance with this chapter is 

unjust or unreasonable and that granting such waiver or 

modification will not be dangerous or prejudicial to the 

life, health, safety or welfare of the employees, the 

department may grant such waiver or modification as may 

be appropriate to the case.

(Emphasis added.)

¶25 We rely on the same rules of construction to interpret

Wis. Admin. Code § DWD 274.05 that we apply to interpret a statute. 

See Hormel Foods Corp., 367 Wis. 2d 131, ¶30 ("When interpreting 

administrative regulations the court uses the same rules of 

interpretation as it applies to statutes."); Orion Flight Servs., 

Inc. v. Basler Flight Serv., 2006 WI 51, ¶18, 290 Wis. 2d 421, 714 

N.W.2d 130 ("Interpretations of code provisions, and the 

 

16 JDF concedes that it does not prevail if Wis. Admin. Code 

§ DWD 274.05 does not apply to this case.
No. 2018AP1681 

15

determination as to whether the provision in question is consistent 

with the applicable statute, are subject to principles of statutory 

construction."). We first look to the plain language of § DWD 

274.05 to determine its meaning. Hormel Foods Corp., 367 Wis. 2d 

131, ¶31. We further consider the context of the regulation and 

the case law interpreting it. Id. 

¶26 By its express terms, Wis. Admin. Code § DWD 274.05 is 

limited to "a waiver or modification to the requirements of this 

chapter . . . ," that is, ch. DWD 274 (emphasis added). The 

requirement that an employee be compensated for donning and doffing 

is governed by Wis. Admin. Code § DWD 272.12(2)(e), which is found 

in a different chapter, ch. DWD 272. The plain language of § DWD 

274.05 therefore does not support JDF's argument that the employees

waived their right to compensation for donning and doffing, as

mandated by § DWD 272.12(2)(e).

¶27 JDF's argument also fails when Wis. Admin. Code § DWD 

274.05 is considered in the context of surrounding regulations. 

"As with statutory interpretation, we interpret the language of 

a regulation in the context in which it is used, 'not in isolation 

but as part of a whole; in relation to the language of surrounding 

or closely-related [regulations]; and reasonably, [so as] to avoid 

absurd or unreasonable results.'" Williams v. Integrated Cmty. 

Servs., Inc., 2007 WI App 159, ¶12, 303 Wis. 2d 697, 736 N.W.2d 

226 (quoting State ex rel. Kalal v. Circuit Court for Dane 

Cty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110). 

¶28 Wisconsin Admin. Code § DWD 274.045, a surrounding 

regulation to § DWD 274.05, explicitly incorporates Wis. Admin. 
No. 2018AP1681 

16

Code § DWD 272.12. Section DWD 274.045, entitled "Interpretation 

of hours worked," states that: "[t]he provisions of s. DWD 272.12 

apply to the interpretation of hours worked under this chapter." 

The text makes clear that provisions of § DWD 272.12 apply when 

calculating "hours worked" under ch. DWD 274. Conversely, Section 

DWD 274.05, entitled "Waiver or modification," does not explicitly 

incorporate provisions from § DWD 272.12 with language similar to 

§ DWD 274.045, such as: "[t]he provisions of s. DWD 272.12 apply 

to a waiver or modification under this chapter." DWD knew how to 

incorporate provisions from another chapter into regulations in 

ch. DWD 274, yet it did not do so in § DWD 274.05. See Lake City 

Corp. v. City of Mequon, 207 Wis. 2d 155, 171, 558 N.W.2d 100 

(1997) ("It is clear that the legislature knew how to accomplish 

this goal [of qualifying the language of the statute], since it 

included similar qualifying language in this very same statute."). 

We therefore decline JDF's request to disregard the express textual 

limitation of "this chapter" included in § DWD 274.05.17

¶29 We further observe that 29 U.S.C. § 203(o), the "federal 

law" referred to in the Hormel Foods Corp. footnotes, is not 

 

17 There are no cases where Wis. Admin. Code § DWD 274.05 has 

been applied outside of ch. DWD 274.

Even if § DWD 274.05 applied, it is undisputed that neither 

JDF nor the Union requested a waiver from DWD of JDF's obligations 

to compensate the employees for donning and doffing.

Additionally, we observe that a waiver pursuant to § DWD 

274.05 is allowed only when DWD has determined that granting a 

waiver or modification "will not be dangerous or prejudicial to 

the life, health, safety or welfare of the employees . . . ." 
No. 2018AP1681 

17

dispositive because "[n]o counterpart to 29 U.S.C. § 203(o) exists 

in Wisconsin law." Hormel Foods Corp., 367 Wis. 2d 131, ¶76. As 

discussed above, Wisconsin law, unlike § 203(o), does not 

expressly allow modification or elimination of compensation for 

donning and doffing through collective bargaining. The Seventh 

Circuit has rejected the contention that "§ 203(o) preempts 

[Wisconsin] law that lacks an equivalent exception." Spoerle v. 

Kraft Foods Glob., Inc., 614 F.3d 427, 428 (7th Cir. 2010). 

¶30 Finally, the citation to Aguilar in the Hormel Foods

Corp. footnotes does not support JDF's assertion that compensation 

for donning and doffing can be modified or eliminated through 

collective bargaining. In Aguilar, a union filed a complaint with 

DWD alleging that Husco owed back pay to its employees for 20-

minute meal breaks, which had been uncompensated pursuant to a 

provision in the parties' collective bargaining agreement. 

Aguilar, 361 Wis. 2d 597, ¶1. The union argued that the collective 

bargaining agreement was in conflict with Wis. Admin. Code § DWD 

274.02, which required employers to pay employees for meal breaks 

that were shorter than 30 minutes.18 Id. DWD disagreed with the 

union because it determined that, although the 20–minute unpaid 

breaks technically violated § DWD 274.02, "the factors favoring a 

waiver [pursuant to Wis. Admin. Code § DWD 274.05] were present in 

this case (specifically, that the parties to the [collective 

 

18 The Aguilar court noted that although Wis. Admin. Code 

§ DWD 274.05 allows employers and unions with a collective 

bargaining agreement to request a waiver, no such request was made. 

Aguilar v. Husco Int'l, Inc., 2015 WI 36, ¶2 & n.2, 361 

Wis. 2d 597, 863 N.W.2d 556.
No. 2018AP1681 

18

bargaining agreement] had agreed to the provision and that there 

was no evidence that the shorter meal breaks jeopardized the life, 

health, safety or welfare of employees)." Aguilar, 361 

Wis. 2d 597, ¶3. This court upheld DWD's interpretation of § DWD 

274.02 and its decision not to seek recovery of back pay since it 

was "reasonable and consistent with the purpose of the regulation." 

Aguilar, 361 Wis. 2d 597, ¶7. 

¶31 Aguilar is distinguishable from this case in two 

important respects. First, Aguilar involved collective bargaining 

for meal breaks, which are regulated by Wis. Admin. Code § DWD 

274.02. Unlike the section regulating donning and doffing, which 

is found in Wis. Admin. Code ch. DWD 272, the section regulating 

meal breaks is found within Wis. Admin. Code ch. DWD 274 and 

therefore fits explicitly within the language of Wis. Admin. Code 

§ DWD 274.05 allowing for waiver of collective bargaining within 

"this chapter." 

¶32 Second, although in Aguilar there was no formal request 

for a waiver under Wis. Admin. Code § DWD 274.05, see Aguilar, 361 

Wis. 2d 597, ¶2, the unpaid meal breaks were expressly agreed upon 

and written into the collective bargaining agreement between the 

parties. Here, it is undisputed that there was nothing written 

into the collective bargaining agreement indicating that 

compensation for donning and doffing was bargained over. Discovery 

has been completed and, as JDF concedes, there is nothing in the 

record that directly ties the Union's withdrawal of the proposal

for compensated donning and doffing time in exchange for an 

increase in employees' base wages. Aguilar falls far short of 
No. 2018AP1681 

19

supporting JDF's argument that if an employee brings an unpaid 

wage claim for donning and doffing under Wis. Admin. Code § DWD 

272.12, it is subject to the waiver provision in § DWD 274.05.

¶33 Ultimately, the two footnotes that JDF relies upon from 

Hormel Foods Corp. do not provide support for JDF's claim that 

compensation for donning and doffing can be modified or eliminated 

through collective bargaining. We reject JDF's attempt to ignore 

the plain language of Wis. Admin. Code § DWD 274.05 and transform 

four Justices' views on an un-briefed issue, contained in separate 

writings that include those dissenting from the judgment, into a 

bargaining right under state law that is commensurate with 29 

U.S.C. § 203(o). 

¶34 We conclude that under Wisconsin law, compensation for 

donning and doffing cannot be modified or eliminated through 

collective bargaining. We therefore affirm the circuit court's 

denial of summary judgment on this issue.

B. The time employees spent donning and 

doffing was not de minimis.

¶35 In the alternative, JDF asserts that the donning 

and doffing time was rendered non-compensable because of 

the doctrine of de minimis non curat lex, which means "the law does

not govern trifles." "De minimis non curat lex," Merriam

Webster Online Dictionary (2020), https://www.merriamwebster.com/dictionary/de%20minimis%20non%20curat%20lex. The de 

minimis 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.''" 
No. 2018AP1681 

20

Hormel Foods Corp., 367 Wis. 2d 131, ¶97 (quoted source omitted). 

The United States Supreme Court has reasoned that a few seconds or 

minutes may be dismissed as de minimis because such "[s]plitsecond absurdities are not justified by the actualities of working 

conditions or by the policy of the Fair Labor Standards Act." 

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946), 

superseded by statute as noted in Integrity Staffing Sols., Inc. 

v. Busk, 574 U.S. 27 (2014). "The de minimis rule is concerned 

with the practical administrative difficulty of recording small 

amounts of time for payroll purposes." Lindow v. United States, 

738 F.2d 1057, 1062 (9th Cir. 1984). In determining whether 

otherwise compensable time is de minimis, courts have considered 

the practical difficulty of recording the additional time, the 

size of the aggregate claim, and whether the work was performed on 

a daily basis. Id. at 1062-63 (citing national cases for this 

proposition).

¶36 In Hormel Foods Corp., Justice Abrahamson's opinion and 

Chief Justice Roggensack's partial concurrence both concluded that 

the de minimis doctrine did not bar compensation for stipulated 

time spent donning and doffing at the beginning and end of the 

work day because it was "not a 'trifle'" and amounted to over $500 

a year per employee. Hormel Foods Corp., 367 Wis. 2d 131, ¶105 

(Abrahamson, J., joined by Ann Walsh Bradley, J.); id., ¶137, 

(Roggensack, C.J., concurring in part, dissenting in part, joined 

by Prosser, J.) ("I conclude that . . . 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 
No. 2018AP1681 

21

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

conclusion."). Justice Abrahamson's opinion acknowledged, 

however, that "[a]lthough the de minimis non curat lex doctrine is 

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

Wisconsin cases, statutes, or regulations state that the 

de minimis doctrine applies to Wisconsin DWD regulations or in 

employment disputes." Id., ¶99 (footnote omitted).

¶37 In this case, the parties stipulated that the total time 

employees spent donning and doffing was 4.3 minutes per day and 

that the amount of time the employees spent walking to and from 

their workstations was up to 4.33 minutes per day. As a result, 

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

of time at issue. See id., ¶104. The average amount of damages 

sought per employee is approximately $675 per year, for five 

years.19 This amount is not a "trifle"; viewed in the aggregate 

it is a significant amount of compensation for tasks that the 

employees completed daily. 

¶38 We assume without deciding that the de minimis doctrine 

applies to claims arising under Wis. Admin. Code § DWD 272.12, and 

conclude that the time spent donning and doffing here was not de 

minimis. We therefore affirm the circuit court's denial of summary 

judgment on this issue.

C. JDF's equitable defenses are not barred by

Wis. Stat. § 109.03(5).

 

19 The time employees spent walking to and from the various 

departments and work areas was included in this calculation.
No. 2018AP1681 

22

¶39 JDF raised several "alternative and affirmative 

defenses" in its answer to the employees' complaint. JDF asserts 

that since 1994 there has been an agreement that the Union, as the 

authorized representative of the employees, would withdraw its 

request for compensation for donning and doffing in return for JDF 

increasing the employees' base wages.20 According to JDF, the 

employees are now "double dipping" by seeking reimbursement for 

compensation they have previously collectively bargained not to 

receive.

¶40 On summary judgment, JDF raised four equitable defenses: 

promissory estoppel, waiver, laches, and unjust enrichment. The 

circuit court summarily rejected JDF's equitable defenses without 

analyzing their merits. As support, the circuit court cited to 

 

20 In support, JDF points to two of the uncontested facts in 

the record on summary judgment:

77. During the back and forth of the labor contract 

negotiations, when the Union would withdraw one of its 

economic proposals it did so with the expectation that 

it was creating an incentive for the Company to make 

some positive movement in increasing its economic offer. 

102. The Company would not have been willing to 

agree to give the same level of wage rate increase in 

2009 if the Union insisted and prevailed on the Company 

to pay an extra amount for donning/doffing and related 

walking time.

However, it is undisputed that proposals can be withdrawn for 

a multitude of reasons. As the employees assert, throughout the 

parties' long bargaining history there have been hundreds or 

thousands of proposals that were withdrawn during the course of 

bargaining. JDF admitted at oral argument that there was nothing 

in the record that explicitly tied the increase in the employees' 

base wage to the Union's withdrawal of its proposal for compensated 

donning and doffing time. 
No. 2018AP1681 

23

Wis. Stat. § 109.03(5),21 which it concluded "prevented clauses in 

contracts from precluding the right to court access." The circuit 

court viewed the four equitable defenses as contravening this 

"strong statement of broad public policy supporting access to 

courts." 

¶41 We review the circuit court's discretionary 

determination to dismiss JDF's equitable defenses using an 

erroneous exercise of discretion standard. See Johnson, 339 

Wis. 2d 493, ¶22. A circuit court erroneously exercises its 

discretion when it applies an improper legal standard or makes a 

decision not reasonably supported by the facts of record. Id.; 

McConnohie, 113 Wis. 2d at 371. 

¶42 The circuit court incorrectly concluded that the mere 

existence of a statutory cause of action bars equitable defenses. 

Wisconsin Stat. § 109.03(5) is a vehicle for employees to assert 

their right to unpaid wages in state court. See, e.g., Aguilar, 

 

21 Wisconsin Stat. § 109.03(5) states:

Except as provided in sub. (1), no employer may by 

special contract with employees or by any other means 

secure exemption from this section. Each employee shall 

have a right of action against any employer for the full 

amount of the employee's wages due on each regular pay 

day as provided in this section and for increased wages 

as provided in [§] 109.11(2), in any court of competent 

jurisdiction. An employee may bring an action against 

an employer under this subsection without first filing 

a wage claim with the department under [§] 109.09(1).

An employee who brings an action against an employer 

under this subsection shall have a lien upon all property 

of the employer, real or personal, located in this state 

as described in [§] 109.09(2).
No. 2018AP1681 

24

361 Wis. 2d 597, ¶12 ("The plaintiffs then brought suit in state 

court pursuant to Wis. Stat. § 109.03(5), which authorizes such 

claims . . . ."); Hubbard v. Messer, 2003 WI 145, ¶10, 267 

Wis. 2d 92, 673 N.W.2d 676 ("Wisconsin Stat. § 109.03(5) grants 

employees a right of action against employers for all unpaid wages 

due to the employee."). Principles of equity, on the other hand, 

are not bound by statute and a determination as to their 

applicability is within a circuit court's discretion. See Culbert 

v. Ciresi, 2003 WI App 158, ¶16, 266 Wis. 2d 189, 667 N.W.2d 825 

("Whether to apply estoppel to preclude a party from raising a 

defense is within the trial court's discretion."); see also Prince 

v. Bryant, 87 Wis. 2d 662, 674, 275 N.W.2d 676 (1979) (emphasizing 

that a circuit court has the power to apply an equitable remedy as 

necessary to meet the needs of a case). 

¶43 We conclude that the circuit court applied an improper

legal standard when it determined that Wis. Stat. § 109.03(5), 

which outlines the right of an employee to bring a wage claim,

acted as a complete bar to JDF's equitable defenses. We therefore 

remand the case to the circuit court for full consideration of 

each of the equitable defenses and a determination as to whether 

any of these defenses preclude the employees' recovery of damages. 

IV. CONCLUSION

¶44 We conclude that under Wisconsin law, compensation for 

donning and doffing cannot be modified or eliminated through 

collective bargaining. We assume without deciding that the de 

minimis doctrine applies to claims arising under Wis. Admin. Code 

§ DWD 272.12, and conclude that the time the employees spent 
No. 2018AP1681 

25

donning and doffing was not de minimis. Finally, we conclude that 

the circuit court erroneously exercised its discretion and the

case should be remanded for full consideration of JDF's four 

equitable defenses. We therefore affirm in part, reverse in part, 

and remand the case to the circuit court. 

By the Court.—The decision of the circuit court is affirmed

in part, reversed in part, and cause remanded.
No. 2018AP1681.akz

1

¶45 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). I write 

separately because the majority errs when it concludes that 

compensable donning and doffing time is not subject to collective 

bargaining. It is. The majority concludes otherwise because it 

gives short-shrift to clearly contrary statements from four 

justices of this court, and ignores the plain language of the 

Wisconsin Administrative Code ("the Code"). I respectfully 

dissent.

¶46 I conclude that compensation for donning and doffing is 

subject to collective bargaining and may be bargained away, 

modified, or waived under Wis. Admin. Code § DWD 274.05 (April 

2018).1 I also conclude that there is an issue of material fact 

regarding whether compensation for donning and doffing was 

actually bargained away in this case. Finally, I conclude that 

the de minimis doctrine applies in Wisconsin. I take issue with 

the majority's failure to answer the important question whether 

the de minimis doctrine applies and the majority's failure to 

provide guidance regarding equitable defenses. Accordingly, I 

would remand to the circuit court for further proceedings 

consistent with this opinion.

¶47 While I disagree with the majority's conclusions, the 

majority aptly summarizes the relevant and undisputed facts of 

this case. I will not separately summarize the facts. Rather, 

this writing assumes the reader's familiarity with the relevant 

facts and will reference them as needed.

 

1 All subsequent references to the Wisconsin Administrative 

Code ch. DWD 274 are to the April 2018 register date unless 

otherwise indicated.
No. 2018AP1681.akz

2

I. STANDARD OF REVIEW

¶48 "This court applies the same summary judgment standards 

as the circuit court, pursuant to Wis. Stat. § 802.08(2) and Bell 

v. County of Milwaukee, 134 Wis. 2d 25, 30, 396 N.W.2d 328 (1986).

Summary judgment is appropriate when there are no issues of 

material fact and only a question of law is presented. Id." 

Aguilar v. Husco Int'l., Inc., 2015 WI 36, ¶17, 361 Wis. 2d 597, 

863 N.W.2d 556.

¶49 In order to determine whether compensation for donning 

and doffing was subject to collective bargaining in this case, we 

must interpret the language of the Wisconsin Administrative Code 

and then apply that language to the facts of this case. "The 

interpretation and application of a statute present questions of 

law that this court reviews de novo while benefiting from the 

analyses of the court of appeals and circuit court." State v. 

Alger, 2015 WI 3, ¶21, 360 Wis. 2d 193, 858 N.W.2d 346 (citing 

State v. Ziegler, 2012 WI 73, ¶37, 342 Wis. 2d 256, 816 

N.W.2d 238). "When interpreting administrative regulations the 

court uses the same rules of interpretation as it applies to 

statutes." United Food & Commercial Workers Union, Local 1473 v. 

Hormel Foods Corp., 2016 WI 13, ¶30, 367 Wis. 2d 131, 876 

N.W.2d 99. Accordingly, the interpretation and application of the 

administrative code is a question of law we review de novo using 

traditional tools of interpretation.

¶50 "We begin our analysis with the language of the relevant 

[administrative regulation]. State ex rel. Kalal v. Circuit Court 

for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. 
No. 2018AP1681.akz

3

The purpose of [our] interpretation is to give the [regulation] 

'its full, proper, and intended effect.' Id., ¶44. If the 

[regulation's] language is plain, we end the inquiry and give the 

language its 'common, ordinary, and accepted meaning, except [we 

give] technical or specially-defined words or phrases . . . their 

technical or special definitional meaning.' Id., ¶45." State v. 

Lopez, 2019 WI 101, ¶10, 389 Wis. 2d 156, 936 N.W.2d 125. "This 

court also analyzes the context and structure of a [regulation] to 

determine its meaning. [Regulation] language 'is interpreted in 

the context in which it is used; not in isolation but as part of

a whole; in relation to the language of surrounding or closelyrelated [regulations] . . . .' [Kalal, 271 Wis. 2d 633, ¶46]. 'A 

[regulation's] purpose or scope may be readily apparent from its 

plain language or its relationship to surrounding or closelyrelated [regulations]——that is, from its context or the structure 

of the [regulation] as a coherent whole.' Id., ¶49." Lopez, 389 

Wis. 2d 156, ¶11.

II. ANALYSIS

A. JDF Conceded That Its Employees' Donning 

And Doffing Is Compensable.

¶51 Under the Wisconsin Administrative Code, employees are 

entitled to compensation for certain activities. Generally 

speaking, under Wis. Admin. Code § DWD 272.12(1)(a) (May 2019)2:

1. Employees subject to the statutes must be paid 

for all time spent in "physical or mental exertion

 

2 All subsequent references to the Wisconsin Administrative 

Code ch. DWD 272 are to the May 2019 register date unless otherwise 

indicated.
No. 2018AP1681.akz

4

(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."

2. "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.

§ DWD 272.12(1)(a)1.-2. (emphases added).

¶52 Employees' daily preparatory and concluding activities 

are not always compensable as "workday" "principal activities." 

Wis. Admin. Code § DWD 272.12(2)(e). Rather, they may be 

categorized as non-compensable "preliminary" and "postliminary" 

activities. § DWD 272.12(2)(e)1.c. Compensable "principal

activities" include only "activities which are an integral part of 

a principal activity." § DWD 272.12(2)(e)1. An activity is 

"integral" if it is "closely related" and "indispensable" to 

performance of an employee's principal activity. § DWD 

272.12(2)(e)1.c. For example:

If an employee in a chemical plant . . . 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 ordinarily 
No. 2018AP1681.akz

5

be regarded as integral parts of the principal activity 

or activities.

Id. (emphases added). 

¶53 Accordingly, changing clothes or donning and doffing 

protective gear requires compensation only if it is "integral" to 

an employee's principal activity——only if it is "closely related" 

and "indispensable" to the employee's principal activity——but not 

if it is "merely a convenience." 

¶54 In this case, JDF requires its employees to don and doff 

"safety footwear, frocks, hairnets, aprons, ear plugs, and plastic 

bump caps" "at the beginning and end of their shifts." Majority 

op., ¶4. As the majority notes, "JDF conceded at oral argument 

that the time employees spent donning and doffing was compensable" 

under Hormel Foods Corp. and Weissman v. Tyson Prepared Foods. 

Majority op., ¶19 n.13. See also Hormel Foods Corp., 367 

Wis. 2d 131; Weissman v. Tyson Prepared Foods, Inc., 2013 WI App 

109, 350 Wis. 2d 380, 838 N.W.2d 502. In light of that concession, 

I assume without deciding that the donning and doffing at issue in 

this case is integral to JDF's employees' principal activity.

B. Compensable Donning And Doffing Is 

Subject To Collective Bargaining.

¶55 Four justices on this court have previously answered the 

question whether compensation for donning and doffing may be 

bargained away under Wisconsin law with a resounding "Yes" in 

Hormel Foods Corp. In that case, Hormel did not argue that 

compensation for donning and doffing had in fact been bargained 

away in a collective bargaining agreement ("CBA"), but it was clear 
No. 2018AP1681.akz

6

that it could have been. See Hormel Foods Corp., 367 Wis. 2d 131. 

Chief Justice Roggensack wrote: 

Hormel does not argue that no compensation [for 

donning and doffing] 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., [571 

U.S. 220 (2014)]. 

Id., ¶113 n.6 (Roggensack, C.J. concurring/dissenting, joined by 

Prosser, J.). And Justice Gableman wrote: 

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 [274.05]; Aguilar v. Husco Int'l, Inc., [362 Wis. 

2d 597, ¶11]. 

Id., ¶145 n.3 (Gableman, J. dissenting, joined by Ziegler, J.). 

This four-justice conclusion that compensation for donning and 

doffing may be bargained away is correct and consistent with the 

plain language of the Wisconsin Administrative Code and this 

court's prior decision in Aguilar. Here is why.

¶56 First, the plain language of Wis. Admin. Code § DWD 

274.05 permits compensation for donning and doffing to be bargained 

away, waived, or modified. The employees argue that compensation 

for donning and doffing is not subject to collective bargaining 

because compensation for donning and doffing is regulated under 

chapter 272 of the Code, and not chapter 274 (meaning § DWD 274.05 

does not apply to it). The majority agrees. Majority op., ¶¶28, 

34. But, as counsel for JDF explained at oral argument, this 
No. 2018AP1681.akz

7

interpretation is incorrect. It is not true that chapters 272 and 

274 are "two silos" "and never the two shall meet."

¶57 Wisconsin Admin. Code § DWD 274.05 allows for the waiver 

or modification of compensation based on collective bargaining 

agreements. It says:

Except as provided in s. DWD 274.08, where a collectively 

bargained agreement exists, the department may consider 

the written application of labor and management for a 

waiver or modification to the requirements of this 

chapter based upon practical difficulties or unnecessary 

hardship in complying therewith. If the department 

determines that in the circumstances existing compliance 

with this chapter is unjust or unreasonable and that 

granting such waiver or modification will not be 

dangerous or prejudicial to the life, health, safety or 

welfare of the employees, the department may grant such 

waiver or modification as may be appropriate to the case.

§ DWD 274.05 (emphases added). The employees and the majority 

focus on the "of this chapter" language but fail to appreciate 

what that language actually means. Immediately prior to § DWD 

274.05, in Wis. Admin. Code § DWD 274.045, the plain language "of 

this chapter"——chapter 274——incorporates "[t]he provisions of 

s. DWD 272.12." § DWD 274.045. It says, "The provisions of 

s. DWD 272.12 apply to the interpretation of hours worked under 

this chapter." Id. (emphasis added).

¶58 The majority misunderstands the significance of this 

incorporation by reference. The majority concludes that since 

Wis. Admin. Code § DWD 274.045 explicitly incorporates by 

reference Wis. Admin. Code § DWD 272.12, and § DWD 274.05 does 

not, the donning and doffing at issue in this case is not subject 

to collective bargaining agreements under § DWD 274.05. The 

majority's conclusion ignores the fact that § DWD 274.045 
No. 2018AP1681.akz

8

incorporates § DWD 272.12 for "the interpretation of hours worked 

under this chapter"——all of chapter 274——not just § DWD 274.045. 

§ DWD 274.045 (emphasis added).

¶59 Accordingly, chapter 274 explicitly incorporates by 

reference Wis. Admin. Code § DWD 272.12, which defines "hours 

worked" for compensation purposes. Thus, if and when donning and 

doffing is compensable under § DWD 272.12, that compensation is 

subject to collective bargaining and waiver or modification under 

Wis. Admin. Code § DWD 274.05. As noted above, JDF conceded that 

the donning and doffing at issue in this case is compensable under 

§ DWD 272.12. Accordingly, it was clearly subject to collective 

bargaining and waiver or modification under § DWD 274.05. 

¶60 Neither party in this case actually applied for a waiver 

or modification of compensation for donning and doffing under Wis. 

Admin. Code § DWD 272.12. But a formal application to the 

Department of Workforce Development is not always necessary. Wis. 

Admin. Code § DWD 274.05 says:

If the department determines that in the circumstances 

existing compliance with this chapter is unjust or 

unreasonable and that granting such waiver or 

modification will not be dangerous or prejudicial to the 

life, health, safety or welfare of the employees, the 

department may grant such waiver or modification as may 

be appropriate to the case.

Id. Thus, the right to compensation may be bargained away "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 [274.05]; Aguilar v. Husco Int'l, Inc., 

[362 Wis. 2d 597, ¶11]." Hormel Foods Corp., 367 Wis. 2d 131, 

¶145 n.3 (Gableman, J. dissenting, joined by Ziegler, J.) (emphases 
No. 2018AP1681.akz

9

added). Under the plain language of the Code, the right to 

compensation may be bargained away if (1) there is a CBA, and (2) 

the § DWD 274.05 factors are met. And either the DWD or a reviewing 

court may determine whether the § DWD 274.05 factors are met. We 

came to a similar conclusion in Aguilar.

¶61 In that case, a union and Husco International, Inc.

agreed in a CBA that employee meal breaks less than 30 minutes 

would not be compensated. Aguilar, 361 Wis. 2d 597, ¶9. The CBA 

was contrary to Wis. Admin. Code § DWD 274.02 (2006), which 

required compensation for meal breaks less than 30 minutes. Id., 

¶¶22-23. Later, as in this case, the union came back and asserted 

"that Husco was required to pay employees for the unpaid breaks 

notwithstanding the CBA." Id., ¶10. The union then filed a 

complaint with the DWD. But "the DWD notified the union that the 

DWD would not seek back pay" of the meal break compensation. Id., 

¶11. The initial decision stated:

"It is not disputed that the parties failed to request 

a waiver from the department under DWD 274.05. However, 

that is a technical violation of the code." After noting 

that there was no reason to think that the agreement 

"jeopardized the life, health, safety or welfare" of the 

employees and that the meal-break length had been a part 

of "the give and take of collective bargaining," the 

decision concluded, "Based on [DWD] review of this 

matter, the factors required to approve a waiver or 

modification of DWD 272.02 are present in the facts of 

this case."

Id., ¶26 (emphasis added). We upheld this determination as 

reasonable and consistent with the purpose of the regulation. Id., 

¶¶36-37.

¶62 Accordingly, the failure to request a waiver from the 

DWD is a mere technical violation. A party may still argue to the 
No. 2018AP1681.akz

10

DWD or a reviewing court that the right to compensation was 

bargained away, modified, or waived because (1) there is a CBA, 

and (2) the § DWD 274.05 factors are met. See Wis. Admin. Code 

§ DWD 274.05; Aguilar, 361 Wis. 2d 597, ¶¶26, 36-37.

¶63 The facts of Aguilar are similar to those of this case. 

Here, the Union and JDF's negotiations during collective 

bargaining involved discussions of compensation for donning and 

doffing. And now, despite their CBAs, the employees seek back pay 

for uncompensated donning and doffing. Also as in Aguilar, neither 

party filed an application for a waiver with the DWD. Under 

Aguilar, it is clear that the compensation for donning and doffing 

in this case still could have been bargained away. It is also 

clear that compensation for donning and doffing was bargained away 

if (1) there was a CBA which bargained away compensation for 

donning and doffing, and (2) the § DWD 274.05 factors were met. 

What is less clear is whether the first prong is satisfied——whether 

the employees' right to compensation for donning and doffing was, 

in fact, bargained away.

C. There Is An Issue Of Material Fact Regarding

Whether Compensation For Donning And Doffing 

Was In Fact Bargained Away.

¶64 It is undisputed that the Union requested compensation 

for donning and doffing during collective bargaining negotiations 

in 1994, 1997, 2000, 2004, and 2009. Majority op., ¶¶5-6. It is 

also undisputed that, at some point during each negotiation, the 

Union withdrew its request. Id. And it is undisputed that each 

collective bargaining negotiation resulted in increased base wages 
No. 2018AP1681.akz

11

for JDF employees. Id. Finally, JDF's Statement of Facts included 

two undisputed assertions relevant to the negotiations:

77. [In 2004,] [d]uring the back and forth of the 

labor contract negotiations, when the Union would 

withdraw one of its economic proposals it did so with 

the expectation that it was creating an incentive for 

[JDF] to make some positive movement in increasing its 

economic offer.

102. [JDF] would not have been willing to agree to 

give the same level of wage rate increase in 2009 if the 

Union insisted and prevailed on [JDF] to pay an extra 

amount for donning/doffing and related walking time.

Majority op., ¶39 n.20.

¶65 On this record, it is undisputed that JDF and the Union's 

collective bargaining negotiations over the years involved 

discussions regarding compensation for donning and doffing. But 

nothing in writing came out of the collective bargaining 

negotiations which specifically stated whether the right to 

compensation for donning and doffing was actually bargained away. 

If the relevant CBAs between the Union and JDF had said, "In 

exchange for the Union's waiver of compensation for donning and 

doffing protective gear, JDF will hereby increase base wages by X 

amount," then this would be an easy case. The employees would 

have bargained away their right to compensation for donning and 

doffing. But we have no such language in the CBAs. Thus, there 

remains an issue of material fact: Was compensation for donning 

and doffing actually bargained away?

¶66 Accordingly, I conclude that compensation for donning 

and doffing is subject to collective bargaining and may be 

bargained away under the plain language of Wis. Admin. Code § DWD 

274.05. But I would remand for a factual determination under the 
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first prong of § DWD 274.05——whether the right to compensation for 

donning and doffing was actually bargained away in this case. The 

second prong——whether the § DWD 274.05 factors are met——also 

remains to be determined.

D. The Majority Fails To Decide Whether The De Minimis 

Doctrine Applies And Provides No Guidance

Regarding The Applicability Of Equitable Defenses.

¶67 In addition to my disagreement with the majority's 

conclusions, I also take issue with the majority because it dodges 

important questions squarely before this court. The majority

"assume[s] without deciding that the de minimis doctrine applies 

to claims arising under Wis. Admin. Code § DWD 272.12, and 

conclude[s] that the time spent donning and doffing here was not 

de minimis." Majority op., ¶38. Thus, the majority reaches its 

desired result without deciding an issue squarely presented to 

this court——whether the de minimis doctrine applies in Wisconsin. 

And the majority comes to a legal conclusion that the time is not 

de minimis without actually adopting a de minimis standard. The 

majority dodges this important issue entirely the same way the 

lead opinion in Hormel Foods Corp. did four years ago. See Hormel

Foods Corp., 367 Wis. 2d 131, ¶181 (Gableman, J. dissenting, 

joined by Ziegler, J.) ("[T]he lead opinion, while pretending to 

engage in a de minimis-like discussion, does 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.").
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¶68 I cannot join the majority's de minimis analysis because 

it leaves this important issue regarding the status of the de 

minimis doctrine in Wisconsin undecided. Rather, I would conclude 

that the de minimis doctrine does indeed apply to claims arising 

under Wis. Admin. Code § DWD 272.12. As the United States Supreme 

Court has explained:

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.

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946) 

(superseded by statute as noted in Integrity Staffing Solutions, 

Inc. v. Busk, 574 U.S. 27 (2014)).

¶69 Furthermore, I cannot join the majority's de minimis 

analysis because the majority comes to a conclusion that the

donning and doffing time is not de minimis without even adopting 

a standard. Majority op., ¶37. The majority leaves the bench and 

bar with nothing but confusion and unpredictability, just as the 

lead opinion did in Hormel Foods Corp. See Hormel Foods Corp., 

367 Wis. 2d 131, ¶189 (Gableman, J. dissenting, joined by Ziegler, 

J.) (footnote omitted) ("The lead opinion tiptoes past this 

quagmire by sidestepping the question entirely. Consequently, the 

question is left unanswered and Wisconsinites are left 

wondering.").

¶70 The majority also "conclude[s] that the circuit court 

applied an improper legal standard when it determined that Wis. 
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Stat. § 109.03(5) . . . acted as a complete bar to JDF's equitable 

defenses." Majority op., ¶43. It then remands to the circuit 

court "for full consideration of each of the equitable defenses 

and a determination as to whether any of these defenses preclude 

the employees' recovery of damages." Id. I agree with the 

majority that § 109.03(5) is not a complete bar to equitable 

defenses, but I cannot join the majority opinion because it 

provides the circuit court with no guidance whatsoever regarding 

those equitable defenses.

III. CONCLUSION

¶71 I conclude that compensation for donning and doffing is 

subject to collective bargaining and may be bargained away, 

modified, or waived under Wis. Admin. Code § DWD 274.05. I also 

conclude that there is an issue of material fact regarding whether 

compensation for donning and doffing was actually bargained away 

in this case. Finally, I conclude that the de minimis doctrine 

applies in Wisconsin. I take issue with the majority's failure to 

answer the important question whether the de minimis doctrine 

applies and the majority's failure to provide guidance regarding 

equitable defenses. Accordingly, I would remand to the circuit 

court for further proceedings consistent with this opinion. 

¶72 For the foregoing reasons, I respectfully dissent.

¶73 I am authorized to state that Chief Justice PATIENCE 

DRAKE ROGGENSACK joins this dissent.
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¶74 REBECCA GRASSL BRADLEY, J. (dissenting). I agree with 

the majority that Wisconsin law precludes parties from bargaining 

away employees' statutory rights to compensation. However, I 

disagree with the majority's conclusion that the time spent by 

Jones Dairy Farm ("JDF") employees donning and doffing was de 

minimis. I also disagree with the majority's decision to "assume 

without deciding" that the de minimis doctrine applies to claims 

under Wis. Admin. Code § DWD 272.12 (May 2019). The de minimis 

doctrine is prevalent in other areas of Wisconsin law, and the 

doctrine applies to employment claims under federal law. I would 

apply the de minimis doctrine to claims under Wisconsin's labor 

laws and conclude that the donning and doffing time in this case 

was de minimis. I respectfully dissent.1

I

¶75 The doctrine of "de minimis non curat lex" recognizes 

that "[t]he law does not concern itself with trifles." De Minimis 

Non Curat Lex, Black's Law Dictionary (11th ed. 2019). This 

doctrine appeared in 19th century Wisconsin cases and predates 

statehood. See, e.g., Hass v. Prescott, 38 Wis. 146, 151 (1875) 

(concluding that even if the judgment was 24 cents in excess of 

what was appropriate, "it would not work a reversal of the 

judgment. De minimis non curat lex"); Carman v. Hurd, 1 Pin. 619, 

624 (1846) ("An excess of some sixty-four cents . . . is 

complained of here. This is a small matter to urge in this court: 

de minimis non curat lex."). This court has applied the doctrine 

 

1 Because I conclude the time at issue in this case was de 

minimis, I would not reach the equitable defenses raised by JDF. 
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in a variety of contexts. See, e.g., Village of Lannon v. WoodLand Contractors, Inc., 2003 WI 150, ¶46, 267 Wis. 2d 158, 672 

N.W.2d 275 (applying to use of personal property for tax 

exemptions); Chappy v. LIRC, 136 Wis. 2d 172, 189, 401 N.W.2d 568 

(1987) (applying to contract rights); Wisconsin Emp. Relations Bd. 

v. Lucas, 3 Wis. 2d 464, 469, 89 N.W.2d 300 (1958) (recognizing 

state labor relations board cannot take jurisdiction of unfair 

labor complaint if the allegation involves an actor engaging in 

"more than de minimis" interstate commerce).

¶76 Wisconsin never affirmatively adopted or rejected the de 

minimis doctrine in employment law. See majority op., ¶38 ("We 

assume without deciding that the de minimis doctrine applies to 

claims arising under Wis. Admin. Code § DWD 272.12[.]"); United 

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

2016 WI 13, ¶¶98-100, 367 Wis. 2d 131, 876 N.W.2d 99 (Abrahamson, 

J., joined by Ann Walsh Bradley, J.) ("Assuming, without deciding, 

that the de minimis doctrine is applicable to claims under Wis. 

Admin. Code § DWD 272.12[.]"); Id., ¶181 (Gableman, J., 

dissenting, joined by Zeigler, J.) ("[T]he lead opinion does not 

determine whether the de minimis doctrine applies in 

Wisconsin[.]"). 

¶77 In contrast, the doctrine is well-established in federal 

employment law. In a case involving compensation for time spent 

walking in the workplace, the Supreme Court stated: 

We do not, of course, preclude the application of a de 

minimis rule where the minimum walking time is such as 

to be negligible. . . . When the matter in issue 

concerns only a few seconds or minutes of work beyond 

the scheduled working hours, such trifles may be 

disregarded. . . . It is only when an employee is 
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required to give up a substantial measure of his time 

and effort that compensable working time is involved. 

The de minimis rule can doubtless be applied to much of 

the walking time involved in this case[.]

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946) 

superseded by statute, Portal to Portal Act of 1947, Pub. L. No.

80-49, 61 Stat. 84, as recognized in Integrity Staffing Sols., 

Inc. v. Busk, 574 U.S. 27 (2014). In Integrity Staffing Sols., 

the Supreme Court again acknowledged the doctrine in the context 

of employment compensation, "reject[ing] the employees' argument 

that time spent waiting to undergo the security screenings is 

compensable [under federal law] because Integrity Staffing could 

have reduced that time to a de minimis amount." Integrity Staffing 

Sols., 574 U.S. at 36. 

¶78 The United States Court of Appeals for the Ninth Circuit 

established criteria for determining whether otherwise compensable 

time is de minimis: (1) "the amount of daily time spent on the 

additional work"; (2) "the practical administrative difficulty of 

recording the additional time"; (3) "the aggregate amount of 

compensable time"; and (4) "the regularity of the additional work." 

Lindow v. United States, 738 F.2d 1057, 1062-63 (9th Cir. 1984). 

Although no exact amount or rigid rule is determinative, "[m]ost 

courts have found daily periods of approximately 10 minutes de 

minimis[.]" Id. at 1062 (citations omitted). Applying these 

factors, the Lindow court deemed de minimis an average of 7 to 8 

minutes a day performing pre-shift activity because recording this 

time was administratively difficult and the employees did not 

regularly perform the pre-shift compensable work. Id. at 1064. 

¶79 Other federal courts of appeal are in accord. See, e.g., 

Kellar v. Summit Seating, Inc., 664 F.3d 169, 176-77 (7th Cir. 
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2011) (applying Lindow; concluding pre-shift work between 15 and 

40 minutes per day was not de minimis); Perez v. Mountaire Farms, 

Inc., 650 F.3d 350, 372-75 (4th Cir. 2011); (adopting the Lindow

factors and holding 10.204 minutes per day was not de minimis); 

Brock v. City of Cincinnati, 236 F.3d 793, 804-05 (6th Cir. 2001) 

(holding the doctrine was not applicable after balancing the Lindow

criteria); Reich v. Monfort, Inc., 144 F.3d 1329, 1333-34 (10th 

Cir. 1998) (applying the Lindow factors); Reich v. New York City 

Transit Auth., 45 F.3d 646, 652-53 (2d Cir. 1995) (applying the 

Lindow test and concluding extra time dog handlers spent attending 

their dogs was de minimis); see also 29 C.F.R. § 785.47 (2019). I 

would join other courts in adopting Lindow's test for assessing 

whether the time Wisconsin employees spend donning and doffing is 

de minimis. 

II

¶80 In this case, the parties stipulated that the total time 

an employee spent donning and doffing per day was 4.3 minutes. 

The time spent walking to the employees' workstations varied from 

.30 minutes to 4.33 minutes, depending on the department. 

Collectively, the employees seek pay for time ranging from roughly 

4 minutes and 40 seconds to roughly 8 minutes and 40 seconds. In 

Lindow, the Ninth Circuit held that 7 to 8 minutes of time spent 

per day was de minimis. See Lindow, 738 F.2d at 1064. Even 

assuming 10 minutes of non-paid time, it was "negligible so that 

the de minimis rule . . . should be applied." Green v. Planters 

Nut & Chocolate Co., 177 F.2d 187, 188 (4th Cir. 1949). Indeed, 

"[m]ost courts have found daily periods of approximately 10 minutes 

de minimis even though otherwise compensable." Lindow, 738 F.2d 
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at 1062 (citations omitted). As the dissent in Hormel noted, 

"Lindow itself stands for the proposition that 7 to 8 

minutes . . . qualified as de minimis." 367 Wis. 2d 131, ¶187 

n.24 (Gableman, J., dissenting joined by Zeigler, J.) (citing 

Lindow, 738 F.2d at 1063-64); see also Hoyt v. Ellsworth Co-op. 

Creamery, 579 F. Supp. 2d 1132, 1138 (W.D. Wis. 2008) ("Spending 

approximately 10 minutes per day changing may weigh in favor of 

the time being considered de minimis."). This first factor 

suggests the time spent donning and doffing by JDF employees, as 

well as walking to their workstations, should be deemed de minimis. 

¶81 The next consideration is the "administrative difficulty 

of recording the additional time." Lindow, 738 F.2d at 1063. In 

particular, the inquiry focuses on the "practical administrative 

difficulty of recording small amounts of time for payroll 

purposes." Id. at 1062 (emphasis added; citation omitted). While 

the parties stipulated to the time in this case, such an ex-post 

stipulation in the midst of litigation says nothing about the 

administrative difficulty of recording the additional time. JDF 

explained it stipulated to the number of minutes because litigating 

the amount would be expensive due to the difficulty of accurately 

measuring and recording the time spent donning and doffing.

¶82 One of the plaintiffs and another employee testified JDF 

employees often engaged in personal conversations or personal 

activities during the same pre- or post-shift time spent donning 

and doffing. Under these circumstances, JDF would be challenged 

to measure the time spent donning and doffing without also 

capturing non-compensable personal activities. See Lindow, 738 

F.2d at 1063-64 (concluding there would have been administrative 
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difficulty "monitoring [] pre-shift activity" in part because of 

a "wide variance in the amount of pre-shift time spent on 

compensable activities as opposed to social activities."). 

Similarly, there is no practical way JDF could account for the 

differing speeds with which employees don and doff their clothing, 

or walk to their stations. See Monfort, Inc., 144 F.3d at 1334 

(concluding that where "employees used a variety of safety gear 

that took varying times to take on and off" it was 

"administratively difficult to record the actual time each worker 

engaged in these activities"). It would be nearly impossible for 

JDF to accurately account for each employee's time spent donning 

and doffing. The administrative difficulty in recording this 

additional time weighs heavily in favor of the donning and doffing 

time being de minimis. 

¶83 The third Lindow factor examines the aggregate amount of 

the donning and doffing time. The stipulated time range averages 

$675 per employee per year. See majority op., ¶37. Even if the 

aggregate compensable wages may weigh against determining the 

claim to be de minimis, this factor is not dispositive. Rather, 

"the administrative difficulty of recording the time and the 

irregularity of the additional pre-shift work" renders the claim 

de minimis even if "plaintiffs' aggregate claim may be 

substantial." Lindow, 738 F.2d at 1064. 

¶84 Lindow's final factor in the de minimis analysis 

considers the "regularity of the additional work." Lindow, 738 

F.2d at 1063. While the JDF employees don their clothes every day 

prior to their shifts and doff them each day at the end of their 

shifts, the irregularity in these activities, as in Lindow, stems 
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from "a wide variance in the amount of pre-shift time spent on 

compensable activities as opposed to social activities." Id. at 

1063. The personal activities periodically and unpredictably 

intermingled with donning and doffing, such as primping, 

socializing with co-workers, reading newspapers, texting, and 

surfing the internet, introduce irregularity in performing work 

tasks and weigh in favor of the time being deemed de minimis under 

the Lindow test. Id. at 1063-64. 

¶85 While the aggregate size of the claim and daily practice 

of donning and doffing weigh against deeming plaintiffs' claim de 

minimis, the daily amount of time spent engaging in these 

activities, the variability among employees in the time spent on 

compensable work versus personal activities, and the 

administrative difficulty in recording the additional time all 

weigh in favor of deeming the time to be de minimis. Lindow

described the specific time spent each day performing the work as 

the "important factor" and noted the rule in its entirety focuses 

on the "administrative difficulty" consideration. See Lindow, 738 

F.2d at 1062. The Supreme Court has likewise placed more weight 

on the specific time spent each day on the challenged activity. 

In Anderson, the Court noted that it could apply the de minimis 

rule to "much of the walking time involved[,]" but remanded for a 

factual determination "as to the amount of walking time in issue." 

328 U.S. at 692 (emphasis added). The Court was clear its main 

concern focused on the first factor adopted by Lindow:

When the matter in issue concerns only a few seconds or 

minutes of working beyond the scheduled working hours, 

such trifles may be disregarded. . . . It is only when 

the employee is required to give up a substantial measure 
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of his time and effort that compensable working time is 

involved. 

Id. (emphasis added). In rejecting application of the de minimis 

rule, the Court just a few years ago emphasized the specific time 

at issue. See Integrity Staffing Sols., 574 U.S. at 36-37 

(rejecting an argument that the time spent was compensable because 

the employer "could have reduced that time to a de minimis amount." 

(emphasis added)). 

III

¶86 In the context of labor law, Wisconsin cases provide no 

guidance regarding application of the de minimis doctrine, this 

court having declined to decide the issue. We have already adopted 

the doctrine in other areas of law, see supra ¶75, and we should 

extend the doctrine to wage and hour claims, consistent with 

federal courts. Harmonizing the Supreme Court's statements in 

Anderson and Integrity Staffing Sols. with the Ninth Circuit's 

holding in Lindow, the specific time spent each day on the activity 

and the administrative difficulty in recording the additional time 

are the most important considerations in the de minimis analysis. 

The roughly 4 minutes and 40 seconds to 8 minutes and 40 seconds 

spent per day donning and doffing and walking to workstations 

render the time de minimis, particularly when coupled with the 

administrative difficulty in recording this extra time for payroll 

purposes. Accordingly, I would determine the time to be noncompensable under the de minimis doctrine. I respectfully dissent. 

 
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