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US District Court: LABOR | CIVIL PROCEEDURE - FLSA class decertification denied; donning / doffing, meals, breaks- 1 -UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA JASON FRANK, ERICH PEASLEY, ROBERT WILHELM, and WILLIAM E. WATERS, Plaintiffs, v. GOLD’N PLUMP POULTRY, INC. Defendant. Case No. 04-CV-1018 (PJS/RLE) ORDER ON DEFENDANT’S MOTIONS TO DECERTIFY, TO DENY CERTIFICATION, AND FOR SUMMARY JUDGMENT T. Joseph Snodgrass, Shawn M. Raiter, and Kelly A. Swanson, LARSON KING, LLP; J. Gordon Rudd, Jr. and Anne T. Regan, ZIMMERMAN REED, PLLP, for plaintiffs. R. Scott Davies, Mark G. Schroeder, and Max C. Heerman, BRIGGS & MORGAN, PA, for defendant. Defendant Gold’n Plump Poultry, Inc. (“Gold’n Plump”) brings three motions: First, Gold’n Plump moves to decertify this case as a class action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-19. That motion is denied with prejudice insofar as it applies to the particular subclass of plaintiffs recommended as a trial subclass by Chief Magistrate Judge Raymond L. Erickson. As to the remaining plaintiffs, that motion is denied without prejudice. The motion may be renewed following the trial of the FLSA claims of the trial subclass. Second, Gold’n Plump moves to deny certification of this case as a state-law class action under Rule 23 of the Federal Rules of Civil Procedure. That motion is denied without prejudice. It, too, may be renewed following the trial of the FLSA claims of the trial subclass. Finally, Gold’n Plump moves for summary judgment against the named plaintiffs on some of their state-law claims. That motion is granted in part and denied in part. - 2 - I. BACKGROUND Gold’n Plump is a vertically integrated chicken producer and processor with three plants — one in Cold Spring, Minnesota, one in Luverne, Minnesota, and one in Arcadia, Wisconsin. Gold’n Plump has about 1,600 employees in Minnesota and Wisconsin. Further details about Gold’n Plump’s operations are provided in the September 14, 2005 order of Judge Joan N. Ericksen, the judge to whom this case was assigned before being transferred to the undersigned. See Frank v. Gold’n Plump, No. 04-CV-1018, 2005 WL 2240336, at *1-2, 2005 U.S. Dist. LEXIS 20441 (D. Minn. Sept. 14, 2005) [Docket No. 63]. Relevant facts are described below as appropriate. Named plaintiffs Jason Frank and Erich Peasley are former sanitation workers at Gold’n Plump’s Cold Spring plant. Named plaintiff Robert Wilhelm currently works on the chickenprocessing line at the Cold Spring plant. Named plaintiff William Waters formerly worked on the chicken-processing line at the Arcadia plant. None of the named plaintiffs is a current or former employee of the Luverne plant. Plaintiffs allege that Gold’n Plump has wrongly failed to pay them for time spent donning, doffing, and sanitizing clothing and equipment, and for time spent walking on Gold’n Plump’s premises. Based on these allegations, they have brought claims under the federal FLSA, 29 U.S.C. §§ 201-19 (Count 1), and the “mini-FLSA” statutes of Minnesota, Minn. Stat. § 177.25 (Count 2), and Wisconsin, Wis. Stat. § 103.01-.03 (Count 3). Plaintiffs also allege that their meal breaks are shorter than required under the statutes and rules of Minnesota, Minn. Stat. § 177.254 and Minn. R. 5200.0120 (Count 4), and Wisconsin, Wis. Stat. §§ 103.01-.03 and Wis. Admin. Code DWD §§ 272, 274 (Count 5). Finally, based on the same alleged underpayments - 3 - on which their statutory claims rest, plaintiffs bring common-law claims for breach of contract, unjust enrichment, and quantum meruit (Counts 6, 7, 8, 9, 10, and 11). In November 2004, plaintiffs moved to certify this case as a class action under the FLSA with respect to their federal claim and under Rule 23 with respect to their state claims. In her September 14, 2005 order, Judge Ericksen preliminarily certified this case as an FLSA class action, but denied as premature plaintiffs’ motion to certify a state-law class under Rule 23. See Frank, 2005 WL 2240336, at *1, *5. In the two years since Judge Ericksen’s order was entered, the parties have taken substantial discovery, and some 244 current and former Gold’n Plump employees have filed consent forms to opt in as FLSA plaintiffs. In January of this year, Gold’n Plump filed the motions that are the subject of this order (that is, motions to decertify the FLSA class, to deny certification of a state-law class, and for summary judgment). The Court heard extensive arguments on the motions on February 21, 2007. The Court indicated at the hearing that, for both substantive and case-management reasons, it did not intend to grant Gold’n Plump’s two anticertification motions in their entirety, but the Court did see a need to divide the single putative class of 244 plaintiffs into subclasses. The Court referred the parties to Chief Magistrate Judge Raymond L. Erickson for the purpose of developing a litigation plan. At the February hearing, the Court reminded the attorneys for the parties that they serve both as advocates for their clients and as officers of this Court, and the Court urged the parties to fulfill both roles by working with Judge Erickson to reach agreement on a litigation plan for this difficult case. Disappointingly, but perhaps not surprisingly, the parties were unable to agree on much of anything. Judge Erickson received extensive briefing from the parties advocating their 1The Court does not mean to imply that Gold’n Plump has abandoned its opposition to any FLSA class certification. Gold’n Plump has consistently maintained that no FLSA class or subclass should be certified — that, in essence, this Court must try 244 separate FLSA cases. - 4 - respective positions and held two hearings, one on April 12 and a second on June 7. Last month, Judge Erickson issued a Report and Recommendation (“R&R”) [Docket No. 419] in which he proposed that the Court, if it denies Gold’n Plump’s motion for FLSA decertification, certify an FLSA class consisting of current and former employees of the Second Processing division of Gold’n Plump’s Cold Spring plant. Judge Erickson also recommended that, in the interest of moving promptly to a trial on plaintiffs’ FLSA claims, the Court defer certifying a Rule 23 statelaw class (assuming that the Court does not grant Gold’n Plump’s motion to deny Rule 23 certification altogether). R&R at 4-6. Gold’n Plump objects to the R&R and proposes instead that the Court certify for trial an FLSA class comprising current and former employees of the food-service department in both the Cold Spring and Arcadia plants. Def. Obj. R&R at 2, 9 [Docket No. 420].1 Plaintiffs oppose Gold’n Plump’s objection and ask the Court to certify the subclass proposed by Judge Erickson in the R&R. Pl. Opp. Def. Obj. R&R at 2 [Docket No. 424]. II. DISCUSSION A. Motion to Decertify FLSA Class Under 29 U.S.C. § 216(b), class actions can be brought under the FLSA by employees on behalf of themselves and “other employees similarly situated.” 29 U.S.C. § 216(b). Class certification in FLSA cases generally proceeds in two stages. Smith v. Heartland Auto. Servs., 404 F. Supp. 2d 1144, 1149 (D. Minn. 2005). At the first stage, a class can be preliminarily certified based on a minimal showing; plaintiffs need only “establish[] a colorable basis for their - 5 - claim that a class of similarly situated plaintiffs exists.” Id. This case passed the first stage when Judge Ericksen preliminarily certified an FLSA class in September 2005. At the second stage, which occurs after plaintiffs have had a chance to opt in and the parties have taken some discovery, plaintiffs must clear a higher hurdle to continue to proceed on a class basis. To decide, at this second stage, whether plaintiffs have met their burden of showing that the class members are “similarly situated” under § 216(b), courts review several factors, including the factual and employment settings of the individual plaintiffs, any defenses that appear to be individual to each plaintiff, and fairness and procedural considerations. Id.; see also Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2001). Class certification under the FLSA is a matter entrusted to the discretion of district courts. See Lusardi v. Lechner, 855 F.2d 1062, 1074-75 (3d Cir. 1988). The second-stage certification decision is generally precipitated by a defendant’s motion to decertify the class. This case is no exception. Gold’n Plump argues that, for three main reasons, this case cannot proceed collectively and must be splintered into 244 individual actions: First, Gold’n Plump contends that it has no overall policy at the corporate or even the plant level about whether and how to pay (or not to pay) for donning and doffing time. Def. Mem. Supp. Mot. Decert. (“Def. Decert. Mem.”) at 27-28 [Docket No. 345]. Rather, Gold’n Plump insists that it simply leaves the question of whether to pay for donning and doffing to the whims of individual supervisors. As a result, Gold’n Plump says, the members of the class have been subject to widely differing practices regarding the payment of donning and donning time. The Court disagrees. There is no doubt that Gold’n Plump has a corporate policy regarding the payment of donning and doffing time, although there is some dispute as to what - 6 - that corporate policy is. Plaintiffs contend that Gold’n Plump’s policy is not to pay for donning and doffing time — i.e., that Gold’n Plump forbids its supervisors to pay for donning and doffing time. Gold’n Plump argues that it simply leaves the question of whether to pay for donning and doffing time to the individual supervisors. Gold’n Plump’s assertion is difficult to take seriously, given the competitiveness of the poultry industry, the attention that the donning-anddoffing issue has received within the industry, and the fact that not a single Gold’n Plump supervisor keeps track of donning and doffing time. Putting that aside, though, even if Gold’n Plump is correct, it does have a policy — a policy not to have a policy. See Frank, 2005 WL 2240336, at *3 (“Gold’n Plump’s failure to address [a notice from the Department of Labor] and affirmatively require its supervisors to implement a practice of paying for donning, doffing, and sanitizing time is itself evidence of a single decision sufficient to warrant certification at this stage.”). The bottom line is that Gold’n Plump has, at a minimum, decided not to require that its employees be paid for donning and doffing. That no-policy policy has allegedly injured all members of the putative class and is properly challenged through a class action. It is true, as Gold’n Plump stresses, that the payment practices of supervisors vary in some respects. For example, some supervisors start paying employees five minutes before they have to be on the line, while other supervisors do not. It is also true that, during those five minutes, employees can don or doff — or read a newspaper, or smoke a cigarette, or make a personal phone call, or go to the bathroom. But this is not a practice of paying for donning and doffing as much as it is a practice of paying for free time, during which employees may choose to don or doff. The varying practices of the supervisors may mean that some employees have less damages than others — or, conceivably, that some employees have no damages at all. But it 2The Court notes that, for the reasons given in the Third Circuit’s carefully reasoned opinion in De Asencio v. Tyson Foods, Inc., it is highly unlikely that Gold’n Plump will succeed in establishing the viability of this defense. No. 06-3502, __ F.3d __, 2007 WL 2505583, 2007 U.S. App. LEXIS 21289 (3d Cir. Sept. 6, 2007). - 7 - does not detract from the point that Gold’n Plump has not adopted a corporate policy requiring that employees be paid for donning and doffing time. Gold’n Plump further argues that it has individualized defenses that cannot be tried on a class-wide basis. Def. Mem. Supp. Mot. Decert. (“Def. Decert. Mem.”) at 33-35 [Docket No. 345]. The Court does not agree; indeed, it appears to the Court that most of Gold’n Plump’s defenses, far from being individualized, are properly treated on a collective basis. For instance, Gold’n Plump argues that donning and doffing is not work. Def. Decert. Mem. at 35. Whether this defense is viable is a question of law and thus will be answered the same with respect to all 244 plaintiffs.2 Likewise, whether Gold’n Plump can defend on the basis that donning and doffing “non-unique gear” is not compensable, id. at 34, is a legal question than can be resolved class-wide. Gold’n Plump’s de minimis defense, id. at 33-34, also raises legal questions susceptible of class-wide resolution, such as how much time is de minimis as a matter of law and what characteristics time must have before it can be considered de minimis. The Court also finds that Gold’n Plump’s good-faith defense to plaintiffs’ willfulness allegations will likely be resolved on a class-wide basis. See Pl. Mem. Opp. Def. Decert. Mot. at 36-38 [Docket No. 360]. In short, although the application of these defenses to different groups of plaintiffs will turn, in part, on facts that may vary among plaintiffs, the Court finds that, on balance, Gold’n Plump’s defenses weigh in favor of class certification, not against it. - 8 - Finally, Gold’n Plump argues that wide variation in what the opt-in plaintiffs don and doff, and in how different plants are physically configured, make this case unsuitable for class treatment in any respect. Def. Mem. Supp. Mot. Decert. (“Def. Decert. Mem.”) at 29-33 [Docket No. 345]. Gold’n Plump exaggerates the factual differences among employees on various shifts and in different departments. If one zooms in close enough on anything, differences will abound; even for a single employee doing a single job, the amount of time that she spends donning and doffing on Monday will differ, at least minutely, from the amount of time that she spends donning and doffing on Tuesday. But plaintiffs’ claims need to be considered at a higher level of abstraction. To determine the right level of abstraction — that is, some appropriate, manageable subclass or subclasses — the Court referred the parties to Chief Magistrate Judge Erickson. After extensive briefing and argument, Judge Erickson determined that a workable subclass in this case would be composed of current and former employees of the Second Processing division at Gold’n Plump’s Cold Spring plant. This subclass includes four departments: food service, breast debone, scannable 1, and scannable 2. R&R at 6. Judge Erickson accepted plaintiffs’ representations that employees in this subclass spend a similar amount of time donning and doffing protective gear and walking within the plant, and that they work under conditions similar to the class as a whole. R&R at 9. Judge Erickson also found that this subclass would be large enough that a trial would provide important guidance to the parties, but not so large as to be unmanageable, particularly given that all members of the subclass work or worked at the same plant. Id. at 8-10. 3Plaintiffs urge the Court to overrule Gold’n Plump’s objection because Gold’n Plump failed to provide the Court with a transcript of the June 7 hearing before Judge Erickson. Pl. Opp. Def. Obj. R&R at 3-5. Rule 72 of the Federal Rules of Civil Procedure obliges parties seeking review of a magistrate judge’s recommendation to “arrange for transcription of the record” only in connection with dispositive motions and prisoner petitions. Fed. R. Civ. P. 72(b). Judge Erickson was not asked to consider either. The R&R, however, directed any objecting party to order and file a hearing transcript if “consideration of the objections requires a review of a transcript” of the hearing. R&R at 12. Because the Court adopts the R&R on the merits, the Court does not decide whether Gold’n Plump’s objection also fails because Gold’n Plump did not order and file a hearing transcript. - 9 - The Court agrees with Judge Erickson. In light of the nature of the plaintiffs’ claims and Gold’n Plump’s defenses, in light of the factual similarities among plaintiffs in this subclass, and in light of considerations of procedural efficiency and case management, the Court finds that members of the Second Processing division at Gold’n Plump’s Cold Spring plant are “similarly situated” for purposes of 29 U.S.C. § 216(b). Accordingly, the Court certifies this subclass for trial and overrules Gold’n Plump’s objection to the R&R.3 B. Motion to Deny Certification of State-Law Class Gold’n Plump argues that this Court should decide now that it will not certify a state-law class under Rule 23 of the Federal Rules of Civil Procedure. Def. Mem. Supp. Mot. Deny Class Cert. [Docket No. 350]. Plaintiffs bear the burden of establishing that Rule 23’s requirements are met, and district courts may certify a class under Rule 23 only after rigorous analysis. Lockwood Motors, Inc. v. Gen. Motors Corp., 162 F.R.D. 569, 573 (D. Minn. 1995). Ultimately, however, district courts have broad discretion to decide whether to certify a class under Rule 23. Rainy Lake One Stop, Inc. v. Marigold Foods, Inc. (In re Milk Prods. Antitrust Litig.), 195 F.3d 430, 436 (8th Cir. 1999). - 10 - The Court agrees with Judge Erickson that, as a matter of case management, the Court should defer deciding whether to certify a state-law class under Rule 23. Given the Court’s finding that this case should proceed as a class action of some form under the FLSA, it is likely that the Court will also find that a Rule 23 class action is appropriate with respect to at least some subclasses. But certifying a Rule 23 state-law class at this point would significantly delay a potential trial on the FLSA claims. Given the lengthy procedural history of this case and the unrelenting contentiousness of the parties, the Court believes that a prompt trial on plaintiffs’ FLSA claims is in the best interest of all concerned, including the Court. Accordingly, the Court denies without prejudice Gold’n Plump’s motion to deny certification of a state-law Rule 23 class. Gold’n Plump may renew its motion, and plaintiffs may bring a motion for class certification, after trial of the FLSA claims of the subclass certified in this order (but not until then). C. Motion for Summary Judgment Gold’n Plump moves for summary judgment on the named plaintiffs’ state-law claims for violations of the Minnesota and Wisconsin meal-break laws and regulations (Counts 4 and 5), breach of contract (Counts 6 through 9), unjust enrichment (Count 10), and quantum meruit (Count 11). As explained below, the Court grants in part and denies in part the motion with respect to the meal-break claims. The Court grants the motion with respect to the unjustenrichment and quantum-meruit claims. And, with respect to the breach-of-contract claims, the Court grants Gold’n Plump’s motion because plaintiffs have agreed to dismiss those claims. Pl. Mem. Opp. Def. Mot. S.J. (“Pl. S.J. Opp.”) at 2 n.2. - 11 - 1. Minnesota Meal-Break Claims Plaintiffs seek to recover damages for Gold’n Plump’s alleged failure to provide them with the meal breaks required by Minnesota law. Under subdivision 1 of Minnesota Statutes § 177.254, titled “Mandatory Meal Break,” employers “must permit each employee who is working for eight or more consecutive hours sufficient time to eat a meal.” Minn. Stat. § 177.254 subd. 1. The meal break required under § 177.254 need not be paid. Id. subd. 2. Section 177.254, by its terms, requires only that meal breaks for covered employees be long enough to give employees “sufficient time to eat a meal.” If plaintiffs’ claims were brought only under § 177.254, Gold’n Plump would be entitled to summary judgment, for plaintiffs have offered no evidence that they lacked sufficient time to eat a meal on their breaks. On this point, plaintiffs simply argue that because portions of the start and end of each meal break were spent donning and doffing (and thus, on plaintiffs’ theory, working), their breaks were of some undetermined length under thirty minutes. Pl. S.J. Opp. at 20. Even if this is true, whether the shortened meal breaks provided “sufficient time to eat a meal” is a separate question — a question on which plaintiffs offer no evidence. Section 177.254 does not, however, stand alone. It is supplemented by Minnesota Rule 5200.0120, which provides in subpart 4 (entitled “Meals”): Bona fide meal periods are not hours worked. . . . The employee must be completely relieved from duty for the purpose of eating regular meals. Thirty minutes or more is ordinarily long enough for a bona fide meal period. A shorter period may be adequate under special conditions. The employee is not completely relieved from duty if required to perform any duties, whether active or inactive, while eating. It is not necessary that an employee be permitted to leave the premises, if the employee is otherwise completely freed from duties during the meal period. If the meal period is frequently interrupted by calls to duty, the employee is - 12 - not relieved of all duties and the meal periods must be considered as hours worked. Minn. R. 5200.0120 subp. 4. The Court requested supplemental briefing from the parties on whether, under Minnesota law, this rule is binding or merely advisory. In its supplemental brief, Gold’n Plump concedes that Rule 5200.0120 “appears to have been promulgated under a proper legislative grant of authority.” Def. Supp. Br. at 1 [Docket No. 376]. Under Minnesota law, such a rule is as binding as a statute, provided that it is reasonable. See State v. Hopf, 323 N.W.2d 746, 752 (Minn. 1982). Gold’n Plump does not dispute the reasonableness of Rule 5200.0120. Gold’n Plump is, therefore, bound by Rule 5200.0120 — but bound to do what? Plaintiffs argue that Gold’n Plump must provide thirty-minute meal breaks unless it can establish that special circumstances justify shorter breaks. Pl. S.J. Opp. at 15. Plaintiffs emphasize these two sentences in the rule: “Thirty minutes or more is ordinarily long enough for a bona fide meal period. A shorter period may be adequate under special conditions.” Minn. R. 5200.0120 subp. 4; Pl. S.J. Opp. at 13. Naturally, Gold’n Plump downplays this language’s importance, emphasizes those aspects of the rule that relate to whether the meal break is uninterrupted, and argues that Rule 5200.0120 does not create a bright-line rule for the length of meal breaks. Def. Mem. Supp. Mot. S.J. (“Def. S.J. Mem.”) at 10-12 [Docket No. 340]. Gold’n Plump finds support for its position in a recent decision by Judge Tony N. Leung of the Minnesota District Court for Hennepin County in Rios v. Jennie-O Turkey Store, Inc., No. 27-CV-03-020489 (Minn. Dist. Ct. – Hennepin County Oct. 6, 2006), Heerman Aff. Ex. B [Docket No. 351]. Faced with a mealbreak claim almost identical to plaintiffs’ claim in this case, Judge Leung granted summary - 13 - judgment to the employer, reasoning that the Minnesota Department of Labor and Industry, in adopting Rule 5200.0120, did not intend to interject a bright-line, thirty-minute lunch period in place of the . . . “sufficient time” standard [found in Minn. Stat. § 177.254 subd. 1]. Rather, the language of Rule 5200.0120 appears to place more emphasis on the necessity of being relieved of duty; that is, the sufficiency of time in which to eat a meal is dictated not by the overall length of time allotted, but by the number or frequency of interruptions during the designated meal period. Rios, slip op. at 24. In addition, as Gold’n Plump points out, a number of federal courts have held that the federal rule on which Minnesota Rule 5200.0120 is based — 29 C.F.R. § 785.19 — does not require that meal breaks be thirty minutes long. Def. S.J. Mem. at 11-12. Federal Rule § 785.19, adopted in 1961, provides: Bona fide meal periods are not worktime. . . . The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating. . . . It is not necessary that an employee be permitted to leave the premises if he is otherwise completely freed from duties during the meal period. 29 C.F.R. § 785.19. The key language in the federal rule about thirty-minute meal periods and “special conditions” was incorporated almost verbatim in Minnesota Rule 5200.0120. Moreover, in adopting Rule 5200.0120, the Minnesota Department of Labor stated that “[u]npaid meal periods are defined to be consistent with federal regulations (29 CFR 785.19).” Labor Standards Div., Minn. Dep’t of Labor and Industry, Statement of Need and Reasonableness – In 4See Myracle v. Gen. Elec. Co., 33 F.3d 55, 1994 WL 456769, at *6, 1994 U.S. App. LEXIS 23307 (6th Cir. 1994) (affirming district court’s conclusion that 29 C.F.R. § 785.19 is nonbinding); Myracle v. Gen Elec. Co., No. 89-2264, 1992 WL 699863, at *7, 1992 U.S. Dist. LEXIS 22474 (W.D. Tenn. Dec. 1, 1992) (“This bulletin [29 C.F.R. § 785.19] is helpful to the court in explaining the enforcement policy of the Department of Labor with regard to meal periods. It is not, however, binding or determinative in this action. While the regulations of the Department of Labor, adopted by the Wage-Hour Administrator, may be considered by the court in cases such as the one at bar, they do not represent legal standards which the court is bound to follow.”); Blain, 371 F. Supp. at 862 (holding that “the 30 minute meal period referred to in Section 785.19 is only a broad guide to the Administrator's enforcement policy. It is not an inflexible standard which binds either the Wage-Hour Administrator or the courts. The essential consideration in any case is whether the employees are in fact completely relieved from work for the purpose of eating a regularly scheduled meal.”). - 14 - the matter of the proposed adoption of amendments to Rules governing the Fair Labor Standards and Child Labor Standards 8 (1986), Def. Supp. Br. Ex. B [Docket No. 376]. The parties agree that the Court should therefore look to federal law in interpreting Minnesota Rule 5200.0120. Pl. S.J. Opp. at 14; Def. Supp. Br. at 2-4. Federal cases interpreting 29 C.F.R. § 785.19 do not, however, provide this Court much useful guidance, for two reasons. First, while Minnesota Rule 5200.0120 is binding (as discussed above), the corresponding federal rule is not. Section 785.19 is an “Interpretative Bulletin” rather than a legislative rule. See Blain v. Gen. Elec. Co., 371 F. Supp. 857, 860 (W.D. Ky. 1971) (discussing 29 C.F.R. § 785.19). As provided in a related section of Title 29 of the Code of Federal Regulations, rules like § 785.19 represent “the positions [the Department of Labor] will take in enforcement of the [FLSA],” and the purpose of those rules is “to inform the public of such positions.” 29 C.F.R. § 785.2. Importantly, those federal courts that have rejected a bright-line rule requiring thirty-minute meal periods under the FLSA have emphasized the nonbinding nature of 29 C.F.R. § 785.19.4 Because § 785.19 is not binding, it does not establish any rules — bright-line or not. - 15 - Second, at least one federal court has suggested that § 785.19 should be interpreted as mandating thirty-minute meal breaks. In Donovan v. Bel-Loc Diner, Inc, the Fourth Circuit stated in a footnote that “[t]o qualify as a bona fide noncompensable [meal] break, the respite must be uninterrupted and at least thirty minutes in duration, and the employee must be completely relieved from duty.” 780 F.2d 1113, 1115 n.1 (4th Cir. 1985). Donovan did not, however, provide any support for this interpretation, except to cite § 785.19 itself. Id. The Court must therefore rely exclusively on the text of Minnesota Rule 5200.0120 to predict how the Minnesota Supreme Court would interpret the rule. Although the Court has the highest regard for Judge Leung, the Court respectfully disagrees with his interpretation of Rule 5200.0120 in Rios for two reasons: First, the fact that Rule 5200.0120 emphasizes that meal breaks must be uninterrupted is in no way inconsistent with the notion that the rule also requires that meal times be 30 minutes long (in the absence of special conditions). One rule can do two things; Rule 5200.0120 can require both that meal periods be at least 30 minutes in length and that those 30-minute breaks be uninterrupted. Second, the Minnesota rule, unlike its federal counterpart, is binding law — as binding as a statute. Words in laws mean something; they have consequences; they express directives, not suggestions or opinions. Under Rios, though, the statement in Rule 5200.0120 that “[t]hirty minutes or more is ordinarily long enough for a bona fide meal period” becomes essentially meaningless — nothing more than a factual assertion about how long it takes most people to eat a meal. The same is true of the language about “special conditions”; under Rios, that language becomes either surplusage or another factual observation. 5The use of the word “ordinarily” suggests that, in some circumstances, a 30-minute break will not be sufficient to eat a meal. Presumably the employee has the burden of proving that, although 30 minutes is ordinarily sufficient, it is not sufficient in her case because, for example, she suffers from a disability. - 16 - Agencies generally do not promulgate binding regulations in order to make observations about the human condition. Agencies use press releases and pamphlets and public-service announcements to do that. The Court does not believe that the Minnesota Department of Labor formally promulgated Rule 5200.0120 merely to make inconsequential observations about how long it takes people to eat meals — something that employers, employees, and everyone else in Minnesota knows as well as the Department. The Court finds it more likely that Rule 5200.0120 — a binding regulation — was intended to require employers to provide an uninterrupted, thirty-minute meal break unless the employer can demonstrate that “special conditions” justify a shorter period. This is the position advocated by plaintiffs, and the Court finds that it is the most reasonable interpretation of the rule. In one sentence, the rule tells employers that a thirty-minute meal break is “ordinarily long enough.”5 The natural next question is, “When is less than thirty minutes long enough?” Immediately after prompting this question, Rule 5200.0120 answers it: Less than thirty minutes is sufficient only “under special conditions.” The burden is on the employer to demonstrate the existence of special conditions that justify a meal break of under thirty minutes. Any other interpretation of Rule 5200.0120 would render at least some of its language meaningless or inapposite. In this case, there is no dispute that plaintiff Wilhelm’s scheduled meal breaks were thirty minutes long and that some of those thirty minutes were used for donning and doffing, an - 17 - activity that Wilhelm argues is work and must be compensated. Gold’n Plump does not assert that “special conditions” justified a shortened meal break for Wilhelm. Accordingly, the Court denies Gold’n Plump’s summary-judgment motion with respect to Wilhelm’s meal-break claims. Plaintiffs Peasley and Frank, however, are differently situated. They worked in the sanitation department, and Peasley testified that, at some point, a majority of sanitation workers voted to take a paid, twenty-minute meal break instead of an unpaid, thirty-minute meal break. Heerman Aff. Ex. C (Peasley Dep.) at 77-78. Peasley personally voted for the shorter paid break, id.; neither Gold’n Plump nor plaintiffs have cited evidence as to how Frank voted. Gold’n Plump argues that the sanitation workers’ vote for a paid, twenty-minute meal break defeats Peasley’s and Frank’s Minnesota meal-break claims. Def. S.J. Mem. at 13-14. The Court agrees. For the period in which Peasley and Frank received a twenty-minute paid meal break as the result of a vote by the sanitation workers, “special conditions” excused Gold’n Plump from providing the thirty-minute meal break ordinarily required by Rule 5200.0120. The Court notes, however, that Gold’n Plump asserts that Peasley and Frank received such a shortened break “[f]or part of their tenure,” not for the entire time at issue in this suit. Def. S.J. Mem. at 5; see also Peasley Dep. at 77-78. Accordingly, Gold’n Plump is entitled to summary judgment on Frank’s and Peasley’s meal-break claims only to the extent that those claims arise from the period of time in which the sanitation workers were provided paid, twenty-minute meal breaks at their own request. To the extent that the claims of Peasley and Frank arise from some other period of time, Gold’n Plump’s motion is denied. - 18 - 2. Wisconsin Meal-Break Claims Plaintiff William Waters worked at Gold’n Plump’s plant in Arcadia, Wisconsin, and brings a claim for violation of Wisconsin’s regulations governing meal breaks. Wisconsin’s regulations, unlike Minnesota’s, unambiguously require that meal breaks be thirty minutes long. Section 274.02 of the Wisconsin Administrative Code for the state’s Department of Workforce Development (“DWD”), titled “Hours of Work,” provides: “The employer shall pay all employees for on-duty meal periods, which are to be counted as work time. An on-duty meal period is a meal period where the employer does not provide at least 30 minutes free from work.” Wis. Admin. Code DWD § 274.02(3). Wisconsin has also adopted regulations that provide guidance on how the DWD will interpret state labor laws and regulations. Section 272.12 of the DWD’s regulations provide interpretive guidance about the term “hours worked,” and subsection (2)(c)(2) of § 272.12 is derived almost verbatim from the federal “Interpretative Bulletin” found at 29 C.F.R. § 785.19 and discussed above. See Wis. Admin. Code DWD § 272.12(2)(c)(2); 29 C.F.R. § 785.19. Notably, Wisconsin made only one substantive change to the federal regulation: While 29 C.F.R. § 785.19 says, “Bona fide meal periods are not worktime,” the corresponding Wisconsin regulation says, “Bona fide meal periods of 30 minutes or more are not work time.” Wis. Admin. Code DWD § 272.12(2)(c)(2) (emphasis added). Gold’n Plump does not dispute that under Wisconsin law, thirty-minute meal periods are mandatory. Gold’n Plump argues, however, that Wisconsin law requires only “substantial compliance” with state regulations, and that Gold’n Plump complied substantially with Wisconsin’s requirement of thirty-minute meal periods. Def. S.J. Mem. at 15-17. 6Gold’n Plump contends that Waters’s claims before February 27, 2002 are time-barred, and that Waters has no claims after October 11, 2002, because he was fired then. Def. S.J. Mem. at 15. Plaintiffs do not dispute this contention. See Pl. S.J. Opp. at 9-11, 20-23. - 19 - It is undisputed that during the relevant period of February 27, 2002 to October 11, 2002, Gold’n Plump provided Wisconsin employees with thirty-three minutes for meals, of which three minutes were paid.6 According to Gold’n Plump, Waters spent little more than three minutes donning and doffing during each meal-break period, so his unpaid meal breaks were so close to thirty minutes that Gold’n Plump is entitled to summary judgment on Waters’s meal-break claim. Def. S.J. Mem. at 15-17. For two reasons, the Court disagrees. First, the Court doubts whether substantial compliance is a defense under Wisconsin law to claims based on that state’s meal-break regulations. Nothing in the regulation’s text suggests that substantial compliance will do, and Gold’n Plump has cited no cases applying the substantial-compliance doctrine to meal-break claims. Instead, Gold’n Plump relies on zoninglaw cases in which courts excused technical failures to comply with procedural requirements. See Step Now Citizens Group v. Town of Utica Planning & Zoning Comm., 663 N.W.2d 833, 848 (Wis. Ct. App. 2003) (excusing town’s failure to comply with notice requirements in a town ordinance where state notice requirements were met and no one was prejudiced); State ex rel. Emanuel v. Zoning Bd. of Appeals, No. 82-1683, 336 N.W.2d 708, 1983 WL 161721, at *2, 1983 Wis. App. LEXIS 3589 (Wis. Ct. App. 1983) (upholding decision of zoning board to accept a permit application that did not strictly comply with procedural requirements). But it is one thing to require only substantial compliance with respect to procedure; it is another thing to require no more than substantial compliance with respect to substantive rules, such as Wisconsin’s requirement that meal breaks be thirty minutes long. 7In their summary-judgment briefs, the parties cite only Minnesota law for the basic principles of unjust-enrichment law. Accordingly, following the parties’ lead, the Court will assume that Wisconsin and Minnesota law are in accord as to those basic principles. - 20 - Second, the amount of time that Wilhelm spent donning and doffing during his mealbreak periods is a disputed question of fact. To the extent that Gold’n Plump contends that Wilhelm spent a de minimis amount of time donning and doffing during his meal breaks — a contention factually related to, but legally distinct from, Gold’n Plump’s substantial-compliance argument — the Court finds, on the record before it, that this is a question for the jury. 3. Unjust Enrichment Plaintiffs bring common-law claims of unjust enrichment (Count 10).7 They contend that by failing to pay plaintiffs for their donning and doffing time, Gold’n Plump has been unjustly enriched by receiving the benefits of plaintiffs’ unpaid labor. Gold’n Plump argues that it is entitled to summary judgment on plaintiffs’ unjust-enrichment claims because plaintiffs have an adequate remedy under state law. The Court agrees with Gold’n Plump. Unjust enrichment is an equitable theory of recovery. See Southtown Plumbing, Inc. v. Har-Ned Lumber Co., 493 N.W.2d 137, 140 (Minn. Ct. App. 1992). To recover for unjust enrichment, a plaintiff must establish three things: (1) the defendant knowingly received something of value; (2) the defendant was not entitled to receive it; and (3) it would be unjust for the defendant to retain it. Id. Moreover, under Minnesota law, “[r]elief under the theory of unjust enrichment is not available where . . . statutory standards for recovery are set by the legislature.” Id. Wisconsin law embraces the same principle. Ruediger v. Sheedy (In re Estate of Ruediger), 264 N.W.2d 604, 610 (Wis. 1978) (“Ordinarily, an aggrieved party must resort to a statutory remedy which was designed to redress a particular injury rather than to common law 8On May 8 2007, the governor of Minnesota approved legislation amending Minn. Stat. § 177.27. 2007 Minn. Sess. Law Serv. Ch. 135 (H.F. 122). All references to § 177.27 in this order are to the pre-amendment version of the statute. - 21 - remedies.”). In this case, Minnesota’s and Wisconsin’s labor laws (as well as the federal FLSA) provide plaintiffs a remedy if Gold’n Plump has wrongfully underpaid them. Plaintiffs cannot also sue in equity — for unjust enrichment — to recover the same unpaid wages at issue in their state labor-law claims (Counts 2 through 5 of the First Amended Complaint). Plaintiffs attempt to save their Minnesota-law claims by arguing that the governing statute preserves their right to seek nonstatutory relief. Plaintiffs misread the statute. Subdivision 8 of Minnesota Statutes § 177.27 provides: An employee may bring a civil action seeking redress for a violation or violations of sections 177.21 to 177.35 directly to district court. An employer who pays an employee less than the wages and overtime compensation to which the employee is entitled under sections 177.21 to 177.35 is liable to the employee for the full amount of the wages, gratuities, and overtime compensation, less any amount the employer is able to establish was actually paid to the employee and for an additional equal amount as liquidated damages. In addition, in an action under this subdivision the employee may seek damages and other appropriate relief provided by subdivision 7 and otherwise provided by law. Minn. Stat. § 177.27 subd. 8.8 Plaintiffs emphasize the last clause of the last sentence quoted, which authorizes employees to seek “other appropriate relief provided by subdivision 7 and otherwise provided by law.” See Pl. S.J. Opp. at 25-26. Plaintiffs ignore, however, the crucial first part of the sentence: Such “other appropriate relief” is available only “in an action under this subdivision” — that is, in an action under subdivision 8 of § 177.27. The “other appropriate relief” language in subdivision 8 expands the remedies for “violations of sections 177.21 to 177.35” beyond those listed in subdivision 8, but it does not - 22 - preserve extrastatutory causes of action. Thus, in Milner v. Farmers Insurance Exchange, the Minnesota Court of Appeals held that because subdivision 8 authorizes “more remedies than those already enumerated in subdivision 8,” employees suing under that provision can seek “injunctive relief and civil penalties as well as damages.” 725 N.W.2d 138, 143 (Minn. Ct. App. 2006). Importantly, the “injunctive relief and civil penalties” authorized in Milner are remedies provided for in subdivision 7 of § 177.27. Relief under subdivision 7 is a type of “other appropriate relief” expressly permitted under subdivision 8. Milner does not, therefore, suggest that subdivision 8 somehow trumps the background rule of Minnesota law that precludes equitable causes of action for claims (like plaintiffs’ claims for unpaid wages) for which statutory remedies exist. As to Wisconsin law, plaintiffs make two arguments, neither of which merits much comment. First, plaintiffs argue that because Gold’n Plump denies liability under Wisconsin’s labor law, Gold’n Plump cannot establish that plaintiffs have a statutory remedy that displaces their unjust-enrichment claims. Pl. S.J. Resp. at 26. But whether plaintiffs can prevail on their statutory claims is irrelevant. What matters is that Wisconsin’s labor laws provide a remedy for the wrong that plaintiffs allege they have suffered, and thus plaintiffs cannot resort to equity to remedy that same wrong. Second, plaintiffs argue that the statutory remedy “may not be wholly adequate and does not represent the full extent of the relief Plaintiffs are entitled to in this action.” Id. This is a conclusion, not an argument. Plaintiffs have pointed to no provision in Wisconsin’s mini-FLSA that expressly preserves equitable claims in general or unjustenrichment claims in particular. See id. at 26-27. The Court therefore finds that plaintiffs’ unjust-enrichment claims fail as a matter of law. - 23 - 4. Quantum Meruit In addition to bringing unjust-enrichment claims, plaintiffs seek to recover in quantum meruit (Count 11). Gold’n Plump contends that plaintiffs’ quantum-meruit claims, because they are equitable in nature and arise out of the identical facts as plaintiffs’ statutory claims, fail for the same reasons that plaintiffs’ unjust-enrichment claims fail. The Court agrees and, for the reasons given above in connection with plaintiffs’ unjust-enrichment claims, grants summary judgment to Gold’n Plump on plaintiffs’ quantum-meruit claims. Gold’n Plump also contends that plaintiffs’ quantum-meruit claims fail because it is undisputed that Gold’n Plump never made an implied promise to pay for donning and doffing time. Def. S.J. Mem. at 25. According to Gold’n Plump, such an implied promise to pay is a necessary element of recovery for quantum meruit, at least under Minnesota law. Id. The Court is unsure whether this is true. On the one hand, language in an antique Minnesota case arguably supports this characterization of the doctrine of quantum meruit. See Elliott v. Caldwell, 45 N.W. 845, 847 (Minn. 1890) (“[T]he mere fact that a part-performance has been beneficial is not enough to render the party benefited liable to pay for the advantage. It must appear that he has taken the benefit under circumstances sufficient to raise an implied promise to pay for the work done . . . .”); see also Ylijarvi v. Brockphaler, 7 N.W.2d 314, 319-20 (Minn. 1942) (quoting Elliott); Lawhead v. Ulwelling, Hollerud Schulz, No. C7-00-1425, 2001 WL 96159, at *2-3, 2001 Minn. App. LEXIS 146 (Minn. Ct. App. Feb. 6, 2001) (quoting Ylijarvi quoting Elliott). On the other hand, Minnesota courts do not clearly differentiate unjust enrichment from quantum meruit, so the Court is not convinced that the elements of a quantum-meruit claim differ in any - 24 - material respect from the elements of an unjust-enrichment claim. See, e.g., Stemmer v. Estate of Sarazin, 362 N.W.2d 406, 408 (Minn. Ct. App. 1985) (“The doctrine of quantum meruit is similarly inapplicable. While quasi contract is imposed by law regardless of the intentions of the parties, it is used only when failure to do so would result in unjust enrichment.”). Indeed, at least one Minnesota court has described quantum meruit as simply a measure of recovery for unjust enrichment. Conus Commc’ns. Co. v. Hubbell, No. C5-99-2131, 2000 WL 979133, at *2 n.1, 2000 Minn. App. LEXIS 748 (Minn. Ct. App. Jul. 18, 2000) (“Quantum meruit is a measure of remedy and does not arise absent a showing of unjust enrichment.”). In light of the murky nature of quantum-meruit claims under Minnesota law, the Court does not decide whether Gold’n Plump is correct that plaintiffs’ quantum-meruit claims fail because Gold’n Plump never implicitly promised to pay plaintiffs for donning and doffing. Instead, as noted above, the Court holds simply that plaintiffs’ quantum-meruit claims fail because they are equitable in nature and therefore are foreclosed by the availability of statutory remedies under Minnesota and Wisconsin law. ORDER Based on the foregoing and on all the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT: 1. The Court ADOPTS Judge Erickson’s August 7, 2007 Report and Recommendation [Docket No. 419] and OVERRULES defendant Gold’n Plump Poultry, Inc.’s objection [Docket No. 420]. 2. As to defendant Gold’n Plump Poultry, Inc.’s motion to decertify this case as a class action under the FLSA [Docket No. 343]: - 25 - a. The motion is DENIED with respect to named and opt-in plaintiffs who work or have worked in the Second Processing division of defendant Gold’n Plump Poultry, Inc.’s Cold Spring, Minnesota plant, and a class made up of these plaintiffs is CERTIFIED for trial. b. The motion is DENIED WITHOUT PREJUDICE with respect to all other named and opt-in plaintiffs. 3. Defendant Gold’n Plump Poultry, Inc.’s motion to deny certification of this case as a state-law class action under Fed. R. Civ. P. 23 [Docket No. 348] is DENIED WITHOUT PREJUDICE. 4. Defendant Gold’n Plump Poultry, Inc.’s motion for summary judgment [Docket No. 338] is GRANTED IN PART and DENIED IN PART as follows: a. With respect to all named plaintiffs: i. Counts 6 through 9 of plaintiffs’ First Amended Complaint [Docket No. 4], for breach of contract under Minnesota and Wisconsin law, are DISMISSED WITH PREJUDICE AND ON THE MERITS. ii. Counts 10 and 11 of plaintiffs’ First Amended Complaint [Docket No. 4], for unjust enrichment and quantum meruit, are DISMISSED WITH PREJUDICE AND ON THE MERITS. b. With respect to plaintiffs Jason Frank and Erich Peasley, to the extent that their claims in Count 4 of plaintiffs’ First Amended Complaint [Docket No. 4] for violation of Minnesota’s meal-break statute, Minn. Stat. - 26 - § 177.25, and Minnesota Rule 5200.0120, are based on the period during which they received paid, twenty-minute meal breaks after a vote by the sanitation workers, those claims are DISMISSED WITH PREJUDICE AND ON THE MERITS. c. With respect to plaintiff William Waters, to the extent that his claim in Count 5 of plaintiffs’ First Amended Complaint [Docket No. 4] for violation of Wisconsin’s meal-break rule, Wis. Admin. Code DWD § 274.02, is based on the period before February 27, 2002 or after October 11, 2002, that claim is DISMISSED WITH PREJUDICE AND ON THE MERITS. d. In all other respects, as to all named plaintiffs, the motion is DENIED. Dated: September 24 , 2007 s/Patrick J. Schiltz Patrick J. Schiltz United States District Judge |
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