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Wisconsin Supreme Court Clarifies That Employees Are Entitled To Additional Hourly Wages At Their Regular Wage Rate For Work Off The Clock

Yingtao Ho
Written by: Yingtao Ho

Under Wisconsin law employers are required to pay the full amount of wages owed to its employees. Wis. Stat. §109.03(1) and (5). Under the Fair Labor Standards Act (FLSA), an employer complies with the minimum wage requirement if it pays wages that, on average, equal or exceed the minimum wage.  Recently, the Wisconsin Department of Workforce Development (“DWD”), under the Walker administration, has rejected claims for full payment of the wage rate for all hours worked if the employer pays on the average at least minimum wage for all hours worked under 40 per week. Now, the decision of the Wisconsin Supreme Court in its recent decision in UFCW Local 1473 v. Hormel Foods, 2016 WI 13 confirms that in Wisconsin all work time must be paid at the established wage rate.

The DWD’s recent enforcement position was rejected by the Wisconsin Supreme Court in its recent decision in UFCW Local 1473 v. Hormel Foods, 2016 WI 13.  The commentary in UFCW Local 1473 v. Hormel Foods, focused on the principle that time spent donning and doffing required by the employee’s work and the employer’s rules must be compensated. At the same time, however, five justices, including the three in the majority along with Justices Roggensack and Prosser in their concurring opinion, ruled that employees are entitled to their hourly wage rate for their unpaid donning and doffing time.  The relevant discussion can be found in the justices’ discussion of the additional pay per year the employees would receive for their donning and doffing time, as a part of their discussion of whether the employees’ claim for donning and doffing pay was de minimis.  See 2016 WI 13 ¶102-105, 161-165.  The five justices held that where the affected employees’ hourly rate was $22 per hour for, they were entitled to an additional $22 per hour for their time spent donning and doffing their protective equipment.

The five justices’ decisions constitute a clearly repudiation of DWD’s enforcement position and provide an opportunity for employees in Wisconsin to recover their established wage rate for all time worked.  Employees who have wage rate well above the minimum wage cannot recover any additional straight time pay for their donning and doffing time under the federal FLSA, given that they have received on average at or above the minimum wage after their donning and doffing time are counted as hours worked.  They, however, can obtain wages for such work under Wisconsin law. The Hormel Foods Court made clear that, under Wisconsin law, the employees are entitled to additional straight time pay at their regular hourly wage, and not the minimum wage, for each of their unpaid hours spent donning and doffing protective equipment integral to their principal activity.

There are numerous instances in which an employer fails to pay its employees for some of their hours worked.  For example, a lunch break under 30 minutes long must be paid under Wisconsin law.  Employees must also be paid for their time driving a truck delivering tools and equipment to the jobsite, donning protective equipment, or for an interrupted meal break.  If you believe you are owed additional pay, at your regular hourly wage for hours worked that your employer has failed to pay, contact the Previant Law Firm S.C. at 414-271-4500.

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