Vernon County Circuit Court Interprets Hormel Foods to Require Regular Rate Pay for Unpaid Hours Worked

Yingtao Ho

On December 1, 2016, Vernon County Circuit Court, Judge Michael Rosborough, issued a summary judgment decision in the case of Bakkestuen et al v. Lepke Holdings, LLC et al. The case involved dump truck drivers who were only paid for the time between when their trucks were loaded for the first time on the day, and the time when their trucks were unloaded for the final time on the day. The drivers were not paid for their time in the morning warming up their trucks, driving to the first assignment on the day, and waiting for their trucks to be loaded. The drivers also were not paid for their time in the afternoon driving from their last jobsite back to the company shop, fueling their trucks, and completing required paperwork.

Under the federal Fair Labor Standards Act, an employer is only required to pay its employees on average the minimum wage. An employee who was paid $20 per hour for 30 hours worked can be paid nothing for the final 10 hours worked, because he would still receive an average wage of $15 per hour, well above the minimum wage. In Bakkestuen, the employer conceded that the dump drivers’ morning and afternoon hours constituted hours worked under Wisconsin law, but argued that the FLSA averaging rule applied to Wisconsin law, so that the Plaintiff dump truck drivers are not entitled to any additional pay for their morning and afternoon work.

The Plaintiffs unsuccessfully argued that Wisconsin law is different, because under the Wisconsin Supreme Court’s decision in UFCW Local 1473 v. Hormel Foods, the employee must receive separate pay for his unpaid hours worked. Judge Rosborough found that Hormel Foods required him to find that the Plaintiff dump truck drivers are entitled to additional pay, at their regular rates, for each of their unpaid hours worked in the morning and afternoon.

Attorney Yingtao Ho of the Previant Law Firm represented the Plaintiffs in the Bakkestuen. Contact The Previant Law Firm, S.C. if you believe you may not have received pay for some of your hours worked.