Arkansas' highest court will hear arguments today over whether a union agreement precludes workers from being paid for time spent putting on and taking off required work equipment at the beginning and end of their shifts.
In a nearly 4 1/2-year-old class-action suit, workers and former employees at the Gerber Products Co. factory in Fort Smith are seeking more than $3 million in back pay for overtime they claim they are entitled to for the hours spent "donning and doffing" of special clothes and equipment at the baby-food production site.
Attorneys for the company say the Arkansas Supreme Court should undo a 2015 Sebastian County Circuit Court ruling in favor of the employees because an agreement with the employees' union states that the workers would not be paid for the time it took them to dress for the job.
Past rulings on the matter have been costly for employers. In Tennessee, Tyson Foods agreed to a $7.75 million settlement in federal court.
The appeal by Gerber in the case is one of several ongoing challenges filed by employees in Arkansas seeking back wages and overtime.
In Yell County, hundreds of workers at Wayne Farms LLC, a poultry producer and processor, are seeking back pay for time spent preparing for work. In a federal case out of Jonesboro, workers at Nestle Inc. food factory are also seeking compensation for time spent dressing for work.
An attorney for the plaintiffs in those cases, Josh Sanford, said it will be interesting to see how the Supreme Court rules in the Gerber case, one that pits a federal rule on "donning and doffing" time for workers under a collective bargaining contract against the state's minimum-wage law, which provides no such exemption.
"It should inform employers that there is a different standard for compensable time under state law," Sanford said. "I think most them have the capability to very quickly modify their practices to make sure they comply with the law. ... It's purely an issue of state law as to whether that time is compensable. Obviously the Arkansas Supreme Court is in the best position to say whether that time is compensable."
The case before the court began in 2012 when employees at the Fort Smith factory filed suit in Sebastian County Circuit Court. Attorneys for Gerber twice tried to have the case taken to federal court but it was remanded both times.
Attorneys for Gerber, which employs about 700 workers at the factory, claim that starting in 1977, there was an "established custom and practice" between the administrators and the employees' union that employees would not be paid for the time they spent dressing or undressing for work.
According to testimony, employers could spent on average 14 to 20 minutes a day donning sanitary uniforms and equipment.
During contract negotiations in 2010, the group's union -- the International Association of Machinists and Aerospace Workers -- withdrew its request that such activities be factored into employees pay in exchange for more pay increases. In 2013, Gerber agreed to start paying for "donning and doffing," but only well after the suit was first filed in Circuit Court.
The court granted the case class-action status in 2013, allowing for claims to be pursued for hundreds of current and former employees. In August 2015, Circuit Judge James Cox ruled in favor of the workers but stayed his ruling, which declared that the company owed the plaintiffs about $3.1 million plus interest.
Attorneys for Gerber immediately appealed, arguing that Section 203 (0) of the Federal Labor Standards Act explicitly exempts pay for "donning and doffing" when an agreement on the issue is struck between a company and the union in collective bargaining.
"The Union here agreed that the time donning, doffing, and walking would be unpaid and, in return, received concessions from Gerber in the form of higher wages and benefits," wrote E.B. Chiles, an attorney for Gerber. "If the employer and union either agree contractually that donning and doffing time be unpaid or have a custom or practice that it be unpaid, the [federal law] does not require that it be paid."
Gerber's attorneys argue that the state's minimum wage law does not mention "donning and doffing" and that it has a clause that gives "broad discretion" to accommodate collective bargaining agreements.
They also argue that of the 15 or so states that allow union agreements to supersede state minimum-wage law requirements, Arkansas' law is the "only one" that clearly is meant to apply to agreements that go above and beyond the law's minimum requirements.
"Arkansas' much broader collective bargaining exemption -- along with the elevation of collective bargaining as 'the public policy of the state' -- shows that the General Assembly intended for employers and unions to have maximum freedom to negotiate mutually beneficial agreements," Chiles wrote. "That state statutory intent is consistent with federal law."
An attorney for the workers, John Holleman, says that despite a clause in the state's minimum-wage law that gives some deference to union contract agreements, the plain language of the statute is clear:
"Under the [minimum-wage law], 'Any agreement between the employee and employer to work for less than minimum wages shall be no defense.'"
Holleman says that unlike getting dressed at home for work, the donning and doffing of company gear before and after a shift is a job requirement and qualifies as "work" even though state law does not mention donning and doffing.
The workers' attorney also argued the state's public policy does not favor "collective bargaining," and pointed to the state's Right to Work amendment.
"Gerber's interpretation of the Arkansas Minimum Wage Act would allow unionized employers to exempt themselves from the Act by simply stating 'the Union agreed.' An agreement -- collectively bargained or otherwise -- is not a defense in Arkansas," Holleman wrote. "The General Assembly did not chose to create a special carve-out for unionized employers, and this Court should not either."
Business on 05/12/2016