A collective bargaining agreement between Kraft Foods Global, Inc., and employees in the company's Madison, Wisconsin, facility who prepare meat products excluded from wage and overtime calculations the time those workers were required to take each day to change in and out of special safety work clothes. That exclusion from wages for time necessarily spent in work activities is permissible under the Fair Labor Standards Act ("FLSA"), so long as negotiated in a bargaining agreement.

The unpaid wages are not OK under Wisconsin state law, noted the 7th Circuit Court of Appeals recently in affirming an earlier district court ruling. The court held that, notwithstanding the collective bargaining agreement, workers during the period in question (from June 2005 until the present) were entitled to rely upon state law that provides them with greater minimum protections than those required by the FLSA. In short: While no pay for "doffing" and "donning" may be perfectly permissible under the FLSA via a collective bargaining agreement, the FLSA does not preempt state law that provides a higher level of protection.

The practical outcome of that ruling is that as many as 1,500 company employees in Madison could collect back pay in amounts up to $5,000, with the total award being as much as $5 million.

One of the named plaintiffs in the 2007 lawsuit against Kraft, Kathi Smith, noted the 15 minutes she has always spent daily putting on and taking off the special clothing required for her job. "It's time spent actually preparing for work," she says. "Any time work is involved, we should be paid for that."

Related Resource: www.madison.com "Appeals court upholds decision on Kraft/Oscar Mayer pay case" August 2, 2010

www.lexology.com "Silent Wisconsin law provides basis for overtime claim despite federal exemption" August 11, 2010