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Overtime and Wages for Food Processing Employees

Yingtao Ho
Written by: Yingtao Ho

If there is one thing Wisconsin is known for it is cheese.  In fact, Wisconsin is home to more than 9,000 dairy farms, more than any other state, and 1.27 million cows. The state also produces over 600 types, styles and varieties of cheese.  These products are the result of hard work by men and women who work in the dairy industry.  What are the rights of employees who perform  food production work to wages and overtime?

Under both state and federal law, employees who are employed in agriculture are exempt from overtime pay. This means, that they do not have to be paid time and one half for hours worked in excess of forty per week. However, the definition of agriculture does not include work “is not incidental to or in conjunction with such farmer’s farming operation.” It also does not include operations performed off a farm if performed by employees employed by someone other than the farmer whose agricultural products are being worked on.  Even someone employed in agriculture must still receive the minimum wage for his or her hours worked.

 

Workers in the dairy industry who are not involved in a farmer’s farming or milking operations do not fall within the agriculture exemption.  This means that they must be paid both minimum wages and overtime.  Failure to compensate employees for “work” time is one of the most basic violations of state and federal wage laws. Examples of such problems include:

  • Having employees work “off the clock”.
  • Failing to pay employees due to inaccurate records of hours worked.
  • Paying employees for scheduled work time, rather than actual hours worked.
  • Improper rounding or illicit editing time records.
  • Permitting employees to “volunteer” to work without pay.

Workers in the dairy industry who are not involved in a farmer’s farming or milking operations do not fall within the agriculture exemption.  This means that they must be paid both minimum wages and overtime.  Failure to compensate employees for “work” time is one of the most basic violations of state and federal wage laws. Examples of such problems include:

  • Having employees work “off the clock”.
  • Failing to pay employees due to inaccurate records of hours worked.
  • Paying employees for scheduled work time, rather than actual hours worked.
  • Improper rounding or illicit editing time records.
  • Permitting employees to “volunteer” to work without pay.

Food processing facilities, including cheesemaking plants, often are subject to regulations that require that employees handling food and dairy products wear specialized, sanitary work uniforms and other protective equipment.  Such equipment cannot be taken home, and employees must change into such clothing at work.   The employees are required to wear such equipment for the benefit of the employer, and it has no benefit to the employee themselves.  Under Wisconsin law, the donning and doffing of such equipment should be treated as work time and that time must be paid for (unless the time de minimus).

Under the Wisconsin wage laws, employees are also able to recover unpaid straight time wages, minimum wages, and overtime. In a Wisconsin wage claim, an employee is entitled to recover the amount of unpaid wages plus increased wages of up to 50% (for a total of 150% of the unpaid wages) if the employee does not first file a DWD complaint, or increased wages of up to 100% (for a total of 200% of the unpaid wages) if an employee completes a DWD investigation before filing suit. Increased damages, attorneys’ fees and costs are also available under state law. By joining with other similarly situated employees, employees are able to collect even small amounts through collective or class actions.

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