Publications: Court: donning, doffing claims preempted by act

In the past several years, labor and employment law practitioners have witnessed a virtual explosion of wage and hour lawsuits. Important issues raised by these actions include whether employees are being appropriately compensated for off-the-clock work, whether employees should be compensated for donning and doffing protective gear and whether employers are properly classifying employees as exempt from the wage and hour laws’ overtime requirements.

Given the complexity and ambiguity of the federal Fair Labor Standards Act (FLSA) and its state law counterparts, employers can easily and unknowingly run afoul of legal requirements for paying their employees straight time or overtime wages. Add to this the potential for large monetary awards for multiple violations that occur over two or three years covering classes of employees, and the attorney fee-shifting provisions of these laws, it is little wonder that the plaintiff bar views wage and hour litigation as very fertile ground.

As with many types of cases, forum selection often is viewed as critical in wage and hour litigation. For several reasons, including the belief that state court judges are less likely to grant summary judgment, lawyers representing employees often bring actions under state wage laws, including the Illinois Minimum Wage Act (IMA) and the Illinois Wage Payment and Collection Act (IWPCA), studiously avoiding the FLSA and the federal jurisdiction that would attach. Employers’ counsel, conversely, generally favor federal court and seek ways to invoke federal jurisdiction.

Forum selection was the key issue recently decided by the U.S. District Court for the Northern District of Illinois in the wage case Curry, et al. v. Kraft Foods Global, Inc., No. 10C1288. Kraft Foods employee Christine Curry, for herself and others similarly situated, brought a class action in the DuPage County, circuit court under the IMA and IWPCA, alleging that Kraft Foods unlawfully failed to pay for the time its employees spent donning and doffing their protective equipment before and after their work shifts. Several of the suing employees were represented for collective bargaining purposes by the International Association of Machinists while others were represented by the Baking and Confectionery Workers Union.

Kraft Foods removed the case to federal court, arguing that the state law claims were preempted by federal law. Specifically, Kraft Foods claimed that Section 301 of the Labor Management Relations Act (LMRA), which imbues federal courts with jurisdiction over collective bargaining agreements (CBA), required a federal forum for the employees’ allegations. The employees moved to remand the case back to state court, arguing that neither the LMRA nor the FLSA preempted their IMA and IWPCA claims.

The district court first determined whether the FLSA and particularly its section 203(o) preempted the employees’ state law claims. Section 203(o) allows employers and unions to agree by CBA to exclude from the definition of “hours worked” any time spent “changing clothes.”

The court noted that, under preemption analysis, there is an assumption that Congress does not intend to interfere with a state’s police power, especially pertaining to areas like labor law that historically have been the province of state government. Preemption, the court wrote, occurs in three forms: (1) Express preemption, where Congress unambiguously declares its intent to preempt state law; (2) implied preemption, where the federal law’s structure and purpose evidence a congressional intent to preempt; and (3) conflict preemption, where there is “an actual conflict between between state and federal law such that it is impossible for a person to obey both.”

Applying these principles, the district court found no express or implied FLSA preemption. Addressing conflict preemption, the court explained that the Kraft Foods CBAs, like the IMA and IWPCA, say nothing about whether donning and doffing counts towards “hours worked.” Accordingly, the court reasoned, there was no “apparent conflict” between FLSA section 203(o) and the Illinois wage laws. The case was not going to stay in federal court on the basis of FLSA preemption.

Not so under the LMRA. According to the district court, if a dispute “centers around interpretation of the CBA’s terms,” the state law claims are “deemed federal in nature” and preempted. The key is whether the dispute can be resolved without interpretation of the CBA. If it can, no preemption. If it cannot, the case remains in federal court.

The Curry court then concluded that it would have to “scrutinize the CBA” to determine if the term “work,” as the CBAs define it, includes donning and doffing. The labor contracts never explicitly say, so the meaning of “work” necessarily would implicate federal contract interpretation as required by the LMRA. That was one ground for federal preemption. Secondly, if the court were to find that the CBAs define “work” to include donning and doffing, the court would need to decipher the CBAs’ compensation and overtime provisions to fashion a remedy for the workers. The CBAs set pay on the basis of seniority and award premium pay for the performance of certain tasks. If the employees won their case, the court would be required to undertake a detailed, factual analysis under the CBAs to determine the amounts owing each employee. This fact, the court decided, militated in favor of preemption. The employees’ motion to remand accordingly was denied.

Curry offers little solace to union free employers facing wage claims under the IMA and IWPCA. The FLSA, which applies to organized and nonorganized employers alike, does not appear available as a vehicle for federal jurisdiction, at least under the facts presented in Curry. Unionized employers, however, would be remiss to not take advantage of the preemption opportunity Curry offers them.