attorney Michael E. Douglas Attorney at Law
  Personal Injury Attorney
  St. Paul Workers Compensation Lawyer work comp attorney
 > About Me
   :: My Commitment
   :: Our Community
 > Legal Practice Areas
  twin cities comsumer lawPersonal Injury
   :: Traffic Accidents
   :: Medical Malpractice
   :: Social Security Disability
   :: Premises Liability
   :: Wrongful Death
   :: Dog Bite
   :: Back/Spinal/Neck Injuries
   :: Whiplash
   :: Defective Medical Devices
   :: Defective Drugs
  Minnesota Personal InjuryWorkers Compensation
  St. Paul personal injuryConsumer Law
   :: Debt Collection
   :: Repossessions
   :: Foreclosures
   :: Loan, Credit, Banking
   :: Arbitration Agreements
   :: Deception and Fraud
   :: Auto Fraud / Lemon Law
   :: Warranties
   :: Predatory Lending
 > Contact Us
   :: Contact Us

Law Offices of Michael E. Douglas
P.O. Box 251551
Woodbury, Minnesota 55125-6551

 Saint Paul Lawyer


US District Court: LABOR | CIVIL PROCEEDURE - FLSA class decertification denied; donning / doffing, meals, breaks

- 1 -
Case No. 04-CV-1018 (PJS/RLE)
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
R. Scott Davies, Mark G. Schroeder, and Max C. Heerman, BRIGGS &
MORGAN, PA, for defendant.
Defendant Goldn Plump Poultry, Inc. (Goldn Plump) brings three motions: First,
Goldn 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, Goldn 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, Goldn 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 -
Goldn 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.
Goldn Plump has about 1,600 employees in Minnesota and Wisconsin. Further details about
Goldn Plumps 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. Goldn 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
Named plaintiffs Jason Frank and Erich Peasley are former sanitation workers at Goldn
Plumps 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 Goldn Plump has wrongly failed to pay them for time spent
donning, doffing, and sanitizing clothing and equipment, and for time spent walking on Goldn
Plumps 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 Ericksens order was entered, the parties have taken
substantial discovery, and some 244 current and former Goldn Plump employees have filed
consent forms to opt in as FLSA plaintiffs. In January of this year, Goldn 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 Goldn Plumps 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 Goldn Plump has abandoned its opposition to
any FLSA class certification. Goldn 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 Goldn Plumps motion for FLSA decertification, certify an
FLSA class consisting of current and former employees of the Second Processing division of
Goldn Plumps 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 Goldn Plumps motion to deny Rule 23
certification altogether). R&R at 4-6.
Goldn 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
Goldn Plumps 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].
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 defendants motion
to decertify the class. This case is no exception. Goldn Plump argues that, for three main
reasons, this case cannot proceed collectively and must be splintered into 244 individual actions:
First, Goldn 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, Goldn
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, Goldn 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 Goldn 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 Goldn Plumps policy is not to pay for donning
and doffing time i.e., that Goldn Plump forbids its supervisors to pay for donning and doffing
time. Goldn Plump argues that it simply leaves the question of whether to pay for donning and
doffing time to the individual supervisors. Goldn Plumps 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 Goldn Plump
supervisor keeps track of donning and doffing time. Putting that aside, though, even if Goldn
Plump is correct, it does have a policy a policy not to have a policy. See Frank, 2005 WL
2240336, at *3 (Goldn Plumps 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 Goldn 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 Goldn 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 Circuits carefully reasoned
opinion in De Asencio v. Tyson Foods, Inc., it is highly unlikely that Goldn 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 Goldn Plump has not adopted a corporate policy requiring
that employees be paid for donning and doffing time.
Goldn 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 Goldn Plumps
defenses, far from being individualized, are properly treated on a collective basis. For instance,
Goldn 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 Goldn 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. Goldn Plumps 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 Goldn Plumps 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, Goldn Plumps
defenses weigh in favor of class certification, not against it.
- 8 -
Finally, Goldn 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]. Goldn 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 Goldn Plumps 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 Goldn Plumps objection because Goldn 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 judges 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 Goldn Plumps objection also fails because Goldn
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
Goldn Plumps 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 Goldn Plumps 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 Goldn Plumps objection to the R&R.3
B. Motion to Deny Certification of State-Law Class
Goldn 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 23s 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 Courts
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 Goldn Plumps motion to deny certification of a state-law Rule 23
class. Goldn 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
C. Motion for Summary Judgment
Goldn 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 Goldn Plumps 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 Goldn Plumps 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, Goldn 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,
Goldn 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). Goldn Plump does not dispute the reasonableness of Rule
Goldn Plump is, therefore, bound by Rule 5200.0120 but bound to do what?
Plaintiffs argue that Goldn 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, Goldn Plump downplays this languages 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]. Goldn 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
Rios, slip op. at 24.
In addition, as Goldn 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. Dept 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 courts 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
In this case, there is no dispute that plaintiff Wilhelms 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. Goldn Plump does not assert
that special conditions justified a shortened meal break for Wilhelm. Accordingly, the Court
denies Goldn Plumps summary-judgment motion with respect to Wilhelms 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 Goldn Plump nor plaintiffs have cited evidence as to how Frank voted.
Goldn Plump argues that the sanitation workers vote for a paid, twenty-minute meal break
defeats Peasleys and Franks 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 Goldn Plump from
providing the thirty-minute meal break ordinarily required by Rule 5200.0120. The Court notes,
however, that Goldn 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, Goldn Plump is entitled to summary judgment on
Franks and Peasleys 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, Goldn Plumps motion is denied.
- 18 -
2. Wisconsin Meal-Break Claims
Plaintiff William Waters worked at Goldn Plumps plant in Arcadia, Wisconsin, and
brings a claim for violation of Wisconsins regulations governing meal breaks. Wisconsins
regulations, unlike Minnesotas, unambiguously require that meal breaks be thirty minutes long.
Section 274.02 of the Wisconsin Administrative Code for the states 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 DWDs 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).
Goldn Plump does not dispute that under Wisconsin law, thirty-minute meal periods are
mandatory. Goldn Plump argues, however, that Wisconsin law requires only substantial
compliance with state regulations, and that Goldn Plump complied substantially with
Wisconsins requirement of thirty-minute meal periods. Def. S.J. Mem. at 15-17.
6Goldn Plump contends that Waterss 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,
Goldn Plump provided Wisconsin employees with thirty-three minutes for meals, of which three
minutes were paid.6 According to Goldn 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 Goldn Plump is entitled to summary judgment on Waterss 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 states meal-break regulations. Nothing in the regulations text suggests
that substantial compliance will do, and Goldn Plump has cited no cases applying the
substantial-compliance doctrine to meal-break claims. Instead, Goldn 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 towns 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 Wisconsins
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 Goldn 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, Goldn Plumps 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, Goldn Plump has been unjustly
enriched by receiving the benefits of plaintiffs unpaid labor. Goldn 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 Goldn 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, Minnesotas and Wisconsins labor laws (as well as the federal FLSA)
provide plaintiffs a remedy if Goldn 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 Goldn Plump denies liability under Wisconsins
labor law, Goldn 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 Wisconsins 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
Wisconsins 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). Goldn 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 Goldn Plump on plaintiffs quantum-meruit claims.
Goldn Plump also contends that plaintiffs quantum-meruit claims fail because it is
undisputed that Goldn Plump never made an implied promise to pay for donning and doffing
time. Def. S.J. Mem. at 25. According to Goldn 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 Commcns. 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 Goldn Plump is correct that plaintiffs quantum-meruit claims fail
because Goldn 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.
Based on the foregoing and on all the files, records, and proceedings herein, IT IS
1. The Court ADOPTS Judge Ericksons August 7, 2007 Report and
Recommendation [Docket No. 419] and OVERRULES defendant Goldn Plump
Poultry, Inc.s objection [Docket No. 420].
2. As to defendant Goldn 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
Goldn 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 Goldn 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
4. Defendant Goldn 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
ii. Counts 10 and 11 of plaintiffs First Amended Complaint [Docket
No. 4], for unjust enrichment and quantum meruit, are
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 Minnesotas 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
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 Wisconsins 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
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


  What day were you injured?

  / /

  What caused your injuries?
Traffic/Bicycle Accident
Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall

  How have your injuries affected

  your life?


  What kinds of medical care
  professionals have you seen?


  What has your treatment cost?


  Is Insurance Involved?
My insurance may cover

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement

I accepted a settlement

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report



          By visiting this page or clicking the
  "submit" button above, you agree
  that you have read and accept this   "disclaimer".
Copyright © Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights Reserved.
Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.