Luisa Perez v. Mountaire Farms, Incorporated

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:06-cv-00121-AMD Paper copies to all parties and the district court/agency. [998606702]. [09-1917, 09-1966]

Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 1 of 59

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LUISA PEREZ; ELVIN FRANCISCO
GONZA OSOVIO, Individually and
on behalf of all persons similarly
situated,
Plaintiffs-Appellees,
v.
MOUNTAIRE FARMS, INCORPORATED,
a Delaware Corporation;
MOUNTAIRE FARMS OF DELAWARE,
INCORPORATED, a Delaware
Corporation,
Defendants-Appellants,
and
RAY BARRIENTOS; MARIA GOMEZ;
JUANA MIGUEL; GIBRAN MOYA
RIVERA; GLORIA PANETO CASTRO;
SHITWA PEREZ LOPEZ; JOSE ANTONIO
SANTIAG LUGO; MARITZA ALCOVER;
JULIO CIFUENTES; JUAN C. COMPIAN;
CARMEN OTERO; IRMA R. PEREZ;
JULISA SANCHEZ; CARLOS TOLLINICHI
LOPEZ; DAYSI DE JESUS VANEGAS;
HAYDEE A. BETANCOURT;







No. 09-1917

Appeal: 09-1917

Document: 68

2

Date Filed: 06/07/2011

Page: 2 of 59

PEREZ v. MOUNTAIRE FARMS

WILLIAM VELAZQUEZ RIVERA; LUZ
E. VILLAREAL; CELSO ESCALANTE
LOPEZ; MANUEL M. HERRERA; LUIS
LOPEZ ORTOLAZA; ALEX J. MILLET
CABAN; JORGE L. NEGRON
MARTINEZ; JANNETT RAMIREZ
SEPULVEDA; CHRISTIAN H. SERRANO;
CATALINA VELASQUEZ; AVILA E.
AVILA; JUAN ROSA CAMACHO;
VICTOR MANUEL DIAZ; RAFAEL
FONSECA VILLAFANE; YAMILETTE
GARCIA QUINONES; LUIS R.
IRIZARRY; ELIDAD PERALES; MARIA
PEREZ MARRERO; SANDRA RIVERA
DIAZ; PEDRO TIRADO BARRETO;
YAHAIRA TORRES CINTRON; VICTOR
G. TORRES LOPEZ; ANTELMA
VASQUEZ; BRIAN VAZQUEZ PEREZ;
ANA M. PUENTES; ABNER VELEZ
SILVA; ANA MARIA ZAMORA;
RAQUEL ARCE RAMOS; ERNESTO
BENAVIDES; ANGEL LUIS CALDERON
SUAREZ; VICENTE CASTRO, JR.;
OSCAR COLON MANGUAL; MARISOL
COTTO RODRIGUEZ; JERRY FAMANIA
ROCHE; MARIA FEBREZ; GUILLERMO
GONZALEZ; SYLVIA GONZALEZ;
ELVIA GUDINO; RAFAEL INFANTE;
ANGEL M. MUNOZ PEREZ; ROSA R.
NIEVES; RUFINA ORTIZ; ABEL ORTIZ
MAZARIEGOS; CUAUHTEMOC RAMIEZ;
HECTOR ZALAZAR; AGUSTIN BRAVO
GONZALES; LEONEL BUENO;







Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 3 of 59

PEREZ v. MOUNTAIRE FARMS

ALBERTO COLON CRUZ; IVAN
CRESPO; OLGA GALARZA OSORIO;
VICTOR GRACIA LOPEZ; WALDERMAR
MENDEZ VAZQUEZ; ROMELIA PEREZ;
FLORENCIA PEREZ ESCALANTE;
MAURICIO PUCIO; MARIA J. RIVERA;
ESPERANZA RODRIGUEZ; RAMON
RODRIGUEZ GUZMAN; RUBEN
VELASQUEZ; IDELIZ VELASQUEZ
VARGAS; JESUS MALPICA VELEZ;
BRENDA MATOS CARABALLO; SOFIA
MEDRANO; HUTO MORALES;
EDGARDO ORTIZ HERNANDEZ;
THOMAS PADILLA SILVA; LENNY
SANTIAGO LEBRON; RODOLFO VELEZ
CUBERO; ADRIAN BRIZENO;
CASTILLO MANUEL MONTES; MARY
L. GARCIA; PAULA MEJIA MENDEZ;
ELEAZAR PEREZ ORTIZ; FELIX
BONILLA; ANDREW A. LONG; JULIAN
MORALES; STACEY M. NORAT ROSA;
JEAN PAUL SOUIL; ADRIAN D.
WHITE, SR.; DENES ALEXANDRE;
DIEUPUIFAIT ALLIUS; MARIE G.
ALLIUS; JOSE MANUEL ANAYA; JOS
C. ANGELES; ERIC AYALA CRUZ;
ELIZABETH BAEZ; JOSE L. BAEZ
RIVERA; AUDIN BATAILLE; JOHANNA
BERMUDEZ; CARLOS G. BIRRIEL
PEREZ;







3

Appeal: 09-1917

Document: 68

4

Date Filed: 06/07/2011

Page: 4 of 59

PEREZ v. MOUNTAIRE FARMS

SOLANGE BLANCHARD; FLORIBERTO
BONOLA ARELLANO; CASSANDRA
BOWDEN; ANABEL BUSANET VEGA;
LEONIDE M. CANTAVE; JESUS
CARRION; EXALUS CHARLERON;
JAMES A. DALE; TIMOTHY O.
DORSEY; MARIE N. DORVILIER;
LUXONE DORVILUS; JUDITH DUCTAN;
ABSALON DUVERGER; SOLIA C.
DUVERGER; RIGOBERTO ESCALANTE;
MARIA ESTRADA; MICHAEL D.
FARIAS; MARIO FELICIANO FLORES;
LIDUVINA FIGUEROA; DAVID T.
FOGG; JAMES FRAZIER; LEON N.
FRAZIER; MELVIN O. GIDDINS;
MARTA GONZALES; ROBERTO J.
GONZALEZ; MAYRA GONZALEZ
SANTIAGO; LARRY HARMON; MARIA
HERNANDEZ; MANUEL M. HERRERA;
BERRIOS HERRERA HAMILTON;
ROMELUS JEAN-LUCNER; JEAN C. DE
JESUS; ELEAZAR JIMENEZ; ERICK
JIMENEZ TIRADO; JAMES JOHNSON;
LISSON JOSEPH; ANIA B. JULES;
JULIEN JULES; JEOMAR LEBRON
RIVERA; JOY LECATES; JAQUES
LITUS; MARIE YOLENE LOUIS;
FERNANDO MALDONADO; ENID
MANDEZ VAZQUEZ; IVAN MARRERO;
ESPERANZA MARTELL; LUIS S.
MARTINEZ; INTERMO MAZARIEGOS;
JESSE MEEKS; JUAN MERCADO;
NAYRA MERCADO GUERRA;







Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 5 of 59

PEREZ v. MOUNTAIRE FARMS

LINDA MERCADO MORALES;
CHARLES MOOD, JR.; JOSE
MORALES; NELIA MORALES;
SYLVIANA MORIDEN; INES MUNGUIA;
EDWIN NIEVES NIEVES; YASHIRA M.
OCASIO RIVERA; MANFORD ONEY;
ANDREA OSTEN; JERRY J. PATTON;
CHARLES L. PAYTON; DELMAR
PEREZ GODINES; ELIAS PEREZ
MAZARIEGOS; BETZAIDA PEREZ
MENDEZ; RICARDO QUINONES
ROMAN; ANGEL ALICEA RAMIREZ;
JANNETTE RAMIREZ SEPULVEDA;
JULIE L. RAMOS; CYNTHIA REDDICK;
IRWIN RIVERA; GILBERTO RIVERA
LABOY; JONATHAN RIVERA; JUANA
ROBLERO DE LEON; IVAN
RODRIGUEZ; JULIO RODRIGUEZ
CEDENO; ABDIEL RODRIQUEZ
CRESPO; RUBEN RUMOS; CYNTHIA
SANCHEZ; MONICA SANCHEZ; DERSY
SANCHEZ CASTRO; GISELLE D.
SANTIAGO; BRENDA SASTRE;
RICHARD L. SATCHELL; VICTOR
SEGARRA VAZQUEZ; RAFAEL D.
SILVERIO; BONAFICIO SOLOMON;
DOLORES SOLOMON; KELLY TAYLOR;
HENRY TEXEIRA JIMENEZ; CHARLES
E. TIMMONS, JR.; DAVID TORRES;
JASON TORRES RODRIGUEZ; GRACE
TURNAGE; ANEL ULYSSE; FRANCISCO
VARGAZ-FRANQUI;







5

Appeal: 09-1917

Document: 68

6

Date Filed: 06/07/2011

Page: 6 of 59

PEREZ v. MOUNTAIRE FARMS

LUIS A. VASQUEZ; NIURKA M.
VELEZ MONTALVO; SANDRA E.
VILLATA; LENA ROMAN VILLEGAS;
VELUS VIRGILE; SANDY DEE
WILLIAMS; BESSIE A. WRIGHT;
DAVID ADAMS; ELISEE ARISTE;
CARLOS CINTRON; MARIA CISNEROS;
YARLEEM COLON GARCIA; MANDEL
CORBIN; WILLIAM CUFFEE; FRED D.
CUSTIS; MENIEZE GUSTIN; ALONZO
HAGANS; SYLPHANE JEAN LESTIN;
JOHNNY J. LOPEZ; MANUEL LOPEZ;
LARRY MCCOY COOPER; CAROD
MERISE; DAUEYSON NEGRON;
JENNIFER PENA AYALA; MARIBEL
PEREZ; LILIA B. RIVERA; PIERRE L.
SAINT HILAIRE; TYRELL TIMMONS;
SUSAN TRIPP; MARILU VELEZ
CLAUDIO; LUIS E. ALVARADO
MORALES; JOYCE A. ASKIUS; NOEL
BARRIOS; PAUL DESRARIUS; OLISIA
DUCTAN; JOSEPH L. GARCIA; SYLVIA
GONZALEZ; GUILLERMINA GUERRERO;
JAVIER HERNANDEZ; CLARETTA
JACKSON; ERIC RESTO; RIOS
EDUARDO RUIZ; MOISES RIVERA;
ALBERTO RIVERA FALCON; SARA J.
ROCHA; JULIANA RODRIGUEZ
ANDINO; ADELA J. SANCHEZ;
NEREDIA ELIZABETH WRIGHT; MARIE
L. ALTENOR; CARMEN SILVIA
APODACA;







Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 7 of 59

PEREZ v. MOUNTAIRE FARMS

JAMES L. BOLDEN; SAINT-REMY
CHARLES; RENISE FLORESTAL; LUIS
C. GARZA; MARIA DE LA LUZ
GONZALEZ; GIL GONZALEZ; ROSA
GONZALEZ; SALVADOR GUERRERO
ROMERO; LOUISE V. HARRIS; VILLA
LOUIGENE; LUIS R. RIVERA
MARRERO; YOLANDA MARTINEZ;
FRANCISCO A. MEDINA; ELIE
MONFORT; BLANCA A. PERDOMO;
CARLOS LUIS PEREZ; JESUS M.
QUEZADA; CARLOS J. REYES; OFELIA
RODRIGUEZ; MIGUEL A. SANTIAGO
RODRIGUEZ; BERENICE S. SANTOS;
LAMONT D. SAVAGE; CHARLES
SAVAGE, JR.; GLYDIS A. SMITH;
ALMA VENEGAS; FRANCISCO
ZAMORA, SR.; CHERYL ZAMUDIO;
ERNST CANTAVE; ANTONIO CARTER;
WILLIAM CESAR; MALVIN CINTRON
ORTIZ; IRIS N. CIRINO PIZARRO;
REGINA CISNEROS; JOHNIE
CONQUEST; GUADALUPE DIAZ PEREZ;
ERENA FLAMER; MARIE GEORGES;
PERR GIDDENS; JENNIFER GONZALEZ;
MAURICE GORDON; EVERARDO J.
JUAREZ; YOON SOO KWAK; MARIA
HERMINIA MOORE; CARLOS
MORALES COLON; SHAWN S.
MULLEN; TRACY A. NOCK;
MERCELANT OCEAN; LAVI ORAS;
CLAUDIA ORTEGA; JUAN PAGAN
SANTIAGO; MICHELLE POINTDUJOUR;







7

Appeal: 09-1917

Document: 68

8

Date Filed: 06/07/2011

Page: 8 of 59

PEREZ v. MOUNTAIRE FARMS

GLORIA R. PUMPHREY; JOAN
QUINONES; AMALIA E. ROMERO;
JESSICA M. ROSARIO RIVERA; IVRAY
SAULS; VIERGELA SENAT; JESSIE R.
SINGLETARY; ANNIE L. STEPHENS;
OLIVER THORNTON; LAURA TOVAR;
JUDITH WILLIAMS; SUZETTE JEAN
BAPTISTE; PAULETTE CHARLERON;
MARTHA CESAR; LELIE DICE;
SHARON L. EATON; LEFILS
FLORESTAL; MELVINA MARIE GIBBS;
FREDIS A. GUZMAN; MICHAEL A.
JACKSON; RAYMOND JOHNSON;
WILFRID LENEUS; FRANCOIS
LIFRANCE; AUGUSTO LOPEZ; ONER
O. NEVAREZ ORTIZ; ALCE ODARIS;
MILAGRO DORIS PASCUAL; ROLAND
H. RAUT; CARLOS M. ROBLES
DELGADO; JUAN A. SANTIAGO
VELASQUEZ; LEON SMITH; BRENDA
STURGIS; NOELIA I. VARGAS;
REYNALDO VEGA; VALERIE
WASHINGTON; LAURA ASCENCIO;
MAGDALENA BRAVO; ELFISE
CASSEUS; JOCELINE DESFINES; ARIEL
DIAZ MORALES; JOHN H. EVANS;
LOURDA MARIE EXANTUS; SELBO
FREJUSTE; WILKELY GARCIA; ELVIRA
GONZALEZ; MARIA GONZALEZ
MONTERROZO; KARINA GUOXARQUETA; RENE GUTIERREZ; WANDA
I. MELENDEZ; PHILLIPE MONFISTON;
JULIANA G. MONTERROZO;







Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 9 of 59

PEREZ v. MOUNTAIRE FARMS

MARIE GABRIELLE MONTILUS;
CARLOS M. MUNIZ TORREZ; DONNE
OGUEZANA; FRANTZ PIERRE;
YOUBENS PIERRE; VALERIE PINKETT;
GUILSON POLYNICE; TIMOTHY
PUMPHREY; CHRISTOPHER
RODRIGUEZ; VICTOR RODRIGUEZ;
BAYRON ROJAS; ELIESE ROMAIN;
MARIE L. ROSIER; ISMAEL RUPERTO;
CRAIG SATCHELL; DONTA E.
VICKERS; JASON TOVAR; JUAN
PEDRO VASQUEZ; JUN JIE ZHENG;
DIANA ALCIUS; CLARENCE BURTON;
HECTOR D. CABAN; RUBEN
CARDONA LUGO; FIRANA
DESRAVINES; MATHURIN EXUME;
CHOISIUS FLORESTAL; PEDRO GIL
GALINDO; SERGIO HERRERA;
CHARLES LECIUS; DULCE JESSICA
LEYVA; ABNER MALDONADO;
BERNARD MONTULUS; CARLINE
MURAT; DONEL PIERRE; JEAN M.
PIERRE-LOUIS; SARAI RODRIGUEZ
RAMOS; ELIZABETH ROSARIO; ZAIDA
IVEETT SANTOS CORREA; ANTHONY
T. HOUSTON; BERNARDA VENTURA;
AURELIA GIL VENTURA; MARGARITA
GIL VENTURA; JEAN LESLY
CHARLES; JACQUES DECEMBRE;
MARIE YANICK DELVA; JEAN
DUMONVIL LIMA; MARIE M.
GUERRIER; ARISTEN ILERA; LAUMISE
ILERA;







9

Appeal: 09-1917

Document: 68

10

Date Filed: 06/07/2011

Page: 10 of 59

PEREZ v. MOUNTAIRE FARMS

ROBELDO LOPEZ; AMERICA D.
MACEDO; REYMUNDO MARTINEZ;
TOMAS MAZARIEGOS VELASQUEZ;
JEAN MONDESTIN; JEAN LOUIS NOEL;
RAMIRO NORIEGA; MIGUEL A. ORTIZ
SERRANO; OMAIRA OTERO MARRERO;
LARRY D. PHILLIPS; AMELICE
PIERRE; GADOUL PIERRILUS; JULIO
ANGEL SANTIAGO PADILLA; RANDY
DE JESUS SOTO,
Claimants,
PUBLIC JUSTICE CENTER; LEGAL AID
BUREAU, INCORPORATED; LEGAL AID
JUSTICE CENTER; MARYLAND
EMPLOYMENT LAWYERS
ASSOCIATION; METROPOLITAN
WASHINGTON EMPLOYMENT LAWYERS
ASSOCIATION; SECRETARY OF LABOR,
U.S. Department of Labor,
Amici Supporting Appellee.







Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 11 of 59

PEREZ v. MOUNTAIRE FARMS

LUISA PEREZ; ELVIN FRANCISCO
GONZA OSOVIO, Individually and
on behalf of all persons similarly
situated,
Plaintiffs-Appellants,
v.
MOUNTAIRE FARMS, INCORPORATED,
a Delaware Corporation;
MOUNTAIRE FARMS OF DELAWARE,
INCORPORATED, a Delaware
Corporation,
Defendants-Appellees,
and
RAY BARRIENTOS; MARIA GOMEZ;
JUANA MIGUEL; GIBRAN MOYA
RIVERA; GLORIA PANETO CASTRO;
SHITWA PEREZ LOPEZ; JOSE ANTONIO
SANTIAG LUGO; MARITZA ALCOVER;
JULIO CIFUENTES; JUAN C. COMPIAN;
CARMEN OTERO; IRMA R. PEREZ;
JULISA SANCHEZ; CARLOS TOLLINICHI
LOPEZ; DAYSI DE JESUS VANEGAS;
HAYDEE A. BETANCOURT; WILLIAM
VELAZQUEZ RIVERA; LUZ E.
VILLAREAL; CELSO ESCALANTE
LOPEZ; MANUEL M. HERRERA; LUIS
LOPEZ ORTOLAZA; ALEX J. MILLET
CABAN; JORGE L. NEGRON
MARTINEZ; JANNETT RAMIREZ
SEPULVEDA; CHRISTIAN H. SERRANO;
CATALINA VELASQUEZ;

11







No. 09-1966

Appeal: 09-1917

Document: 68

12

Date Filed: 06/07/2011

Page: 12 of 59

PEREZ v. MOUNTAIRE FARMS

AVILA E. AVILA; JUAN ROSA
CAMACHO; VICTOR MANUEL DIAZ;
RAFAEL FONSECA VILLAFANE;
YAMILETTE GARCIA QUINONES; LUIS
R. IRIZARRY; ELIDAD PERALES;
MARIA PEREZ MARRERO; SANDRA
RIVERA DIAZ; PEDRO TIRADO
BARRETO; YAHAIRA TORRES
CINTRON; VICTOR G. TORRES LOPEZ;
ANTELMA VASQUEZ; BRIAN VAZQUEZ
PEREZ; ANA M. PUENTES; ABNER
VELEZ SILVA; ANA MARIA ZAMORA;
RAQUEL ARCE RAMOS; ERNESTO
BENAVIDES; ANGEL LUIS CALDERON
SUAREZ; VICENTE CASTRO, JR.;
OSCAR COLON MANGUAL; MARISOL
COTTO RODRIGUEZ; JERRY FAMANIA
ROCHE; MARIA FEBREZ; GUILLERMO
GONZALEZ; SYLVIA GONZALEZ;
ELVIA GUDINO; RAFAEL INFANTE;
ANGEL M. MUNOZ PEREZ; ROSA R.
NIEVES; RUFINA ORTIZ; ABEL ORTIZ
MAZARIEGOS; CUAUHTEMOC RAMIEZ;
HECTOR ZALAZAR; AGUSTIN BRAVO
GONZALES; LEONEL BUENO;
ALBERTO COLON CRUZ;







Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 13 of 59

PEREZ v. MOUNTAIRE FARMS

IVAN CRESPO; OLGA GALARZA
OSORIO; VICTOR GRACIA LOPEZ;
WALDERMAR MENDEZ VAZQUEZ;
ROMELIA PEREZ; FLORENCIA PEREZ
ESCALANTE; MAURICIO PUCIO;
MARIA J. RIVERA; ESPERANZA
RODRIGUEZ; RAMON RODRIGUEZ
GUZMAN; RUBEN VELASQUEZ; IDELIZ
VELASQUEZ VARGAS; JESUS MALPICA
VELEZ; BRENDA MATOS CARABALLO;
SOFIA MEDRANO; HUTO MORALES;
EDGARDO ORTIZ HERNANDEZ;
THOMAS PADILLA SILVA; LENNY
SANTIAGO LEBRON; RODOLFO VELEZ
CUBERO; ADRIAN BRIZENO;
CASTILLO MANUEL MONTES; MARY
L. GARCIA; PAULA MEJIA MENDEZ;
ELEAZAR PEREZ ORTIZ; FELIX
BONILLA; ANDREW A. LONG; JULIAN
MORALES; STACEY M. NORAT ROSA;
JEAN PAUL SOUIL; ADRIAN D.
WHITE, SR.; DENES ALEXANDRE;
DIEUPUIFAIT ALLIUS; MARIE G.
ALLIUS; JOSE MANUEL ANAYA; JOS
C. ANGELES; ERIC AYALA CRUZ;
ELIZABETH BAEZ; JOSE L. BAEZ
RIVERA; AUDIN BATAILLE; JOHANNA
BERMUDEZ; CARLOS G. BIRRIEL
PEREZ; SOLANGE BLANCHARD;
FLORIBERTO BONOLA ARELLANO;
CASSANDRA BOWDEN; ANABEL
BUSANET VEGA; LEONIDE M.
CANTAVE; JESUS CARRION;







13

Appeal: 09-1917

Document: 68

14

Date Filed: 06/07/2011

Page: 14 of 59

PEREZ v. MOUNTAIRE FARMS

EXALUS CHARLERON; JAMES A.
DALE; TIMOTHY O. DORSEY; MARIE
N. DORVILIER; LUXONE DORVILUS;
JUDITH DUCTAN; ABSALON
DUVERGER; SOLIA C. DUVERGER;
RIGOBERTO ESCALANTE; MARIA
ESTRADA; MICHAEL D. FARIAS;
MARIO FELICIANO FLORES; LIDUVINA
FIGUEROA; DAVID T. FOGG; JAMES
FRAZIER; LEON N. FRAZIER; MELVIN
O. GIDDINS; MARTA GONZALES;
ROBERTO J. GONZALEZ; MAYRA
GONZALEZ SANTIAGO; LARRY
HARMON; MARIA HERNANDEZ;
MANUEL M. HERRERA; BERRIOS
HERRERA HAMILTON; ROMELUS
JEAN-LUCNER; JEAN C. DE JESUS;
ELEAZAR JIMENEZ; ERICK JIMENEZ
TIRADO; JAMES JOHNSON; LISSON
JOSEPH; ANIA B. JULES; JULIEN
JULES; JEOMAR LEBRON RIVERA; JOY
LECATES; JAQUES LITUS; MARIE
YOLENE LOUIS; FERNANDO
MALDONADO; ENID MANDEZ
VAZQUEZ; IVAN MARRERO;
ESPERANZA MARTELL; LUIS S.
MARTINEZ; INTERMO MAZARIEGOS;
JESSE MEEKS; JUAN MERCADO;
NAYRA MERCADO GUERRA; LINDA
MERCADO MORALES; CHARLES
MOOD, JR.; JOSE MORALES; NELIA
MORALES; SYLVIANA MORIDEN; INES
MUNGUIA; EDWIN NIEVES NIEVES;







Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 15 of 59

PEREZ v. MOUNTAIRE FARMS

YASHIRA M. OCASIO RIVERA;
MANFORD ONEY; ANDREA OSTEN;
JERRY J. PATTON; CHARLES L.
PAYTON; DELMAR PEREZ GODINES;
ELIAS PEREZ MAZARIEGOS; BETZAIDA
PEREZ MENDEZ; RICARDO QUINONES
ROMAN; ANGEL ALICEA RAMIREZ;
JANNETTE RAMIREZ SEPULVEDA;
JULIE L. RAMOS; CYNTHIA REDDICK;
IRWIN RIVERA; GILBERTO RIVERA
LABOY; JONATHAN RIVERA; JUANA
ROBLERO DE LEON; IVAN
RODRIGUEZ; JULIO RODRIGUEZ
CEDENO; ABDIEL RODRIQUEZ
CRESPO; RUBEN RUMOS; CYNTHIA
SANCHEZ; MONICA SANCHEZ; DERSY
SANCHEZ CASTRO; GISELLE D.
SANTIAGO; BRENDA SASTRE;
RICHARD L. SATCHELL; VICTOR
SEGARRA VAZQUEZ; RAFAEL D.
SILVERIO; BONAFICIO SOLOMON;
DOLORES SOLOMON; KELLY TAYLOR;
HENRY TEXEIRA JIMENEZ; CHARLES
E. TIMMONS, JR.; DAVID TORRES;
JASON TORRES RODRIGUEZ; GRACE
TURNAGE; ANEL ULYSSE; FRANCISCO
VARGAZ-FRANQUI; LUIS A.
VASQUEZ; NIURKA M. VELEZ
MONTALVO; SANDRA E. VILLATA;
LENA ROMAN VILLEGAS; VELUS
VIRGILE; SANDY DEE WILLIAMS;
BESSIE A. WRIGHT; DAVID ADAMS;
ELISEE ARISTE; CARLOS CINTRON;
MARIA CISNEROS;







15

Appeal: 09-1917

Document: 68

16

Date Filed: 06/07/2011

Page: 16 of 59

PEREZ v. MOUNTAIRE FARMS

YARLEEM COLON GARCIA; MANDEL
CORBIN; WILLIAM CUFFEE; FRED D.
CUSTIS; MENIEZE GUSTIN; ALONZO
HAGANS; SYLPHANE JEAN LESTIN;
JOHNNY J. LOPEZ; MANUEL LOPEZ;
LARRY MCCOY COOPER; CAROD
MERISE; DAUEYSON NEGRON;
JENNIFER PENA AYALA; MARIBEL
PEREZ; LILIA B. RIVERA; PIERRE L.
SAINT HILAIRE; TYRELL TIMMONS;
SUSAN TRIPP; MARILU VELEZ
CLAUDIO; LUIS E. ALVARADO
MORALES; JOYCE A. ASKIUS; NOEL
BARRIOS; PAUL DESRARIUS; OLISIA
DUCTAN; JOSEPH L. GARCIA; SYLVIA
GONZALEZ; GUILLERMINA GUERRERO;
JAVIER HERNANDEZ; CLARETTA
JACKSON; ERIC RESTO; RIOS
EDUARDO RUIZ; MOISES RIVERA;
ALBERTO RIVERA FALCON; SARA J.
ROCHA; JULIANA RODRIGUEZ
ANDINO; ADELA J. SANCHEZ;
NEREDIA ELIZABETH WRIGHT; MARIE
L. ALTENOR; CARMEN SILVIA
APODACA; JAMES L. BOLDEN; SAINTREMY CHARLES; RENISE FLORESTAL;
LUIS C. GARZA; MARIA DE LA LUZ
GONZALEZ;







Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 17 of 59

PEREZ v. MOUNTAIRE FARMS

GIL GONZALEZ; ROSA GONZALEZ;
SALVADOR GUERRERO ROMERO;
LOUISE V. HARRIS; VILLA
LOUIGENE; LUIS R. RIVERA
MARRERO; YOLANDA MARTINEZ;
FRANCISCO A. MEDINA; ELIE
MONFORT; BLANCA A. PERDOMO;
CARLOS LUIS PEREZ; JESUS M.
QUEZADA; CARLOS J. REYES; OFELIA
RODRIGUEZ; MIGUEL A. SANTIAGO
RODRIGUEZ; BERENICE S. SANTOS;
LAMONT D. SAVAGE; CHARLES
SAVAGE, JR.; GLYDIS A. SMITH;
ALMA VENEGAS; FRANCISCO
ZAMORA, SR.; CHERYL ZAMUDIO;
ERNST CANTAVE; ANTONIO CARTER;
WILLIAM CESAR; MALVIN CINTRON
ORTIZ; IRIS N. CIRINO PIZARRO;
REGINA CISNEROS; JOHNIE
CONQUEST; GUADALUPE DIAZ PEREZ;
ERENA FLAMER; MARIE GEORGES;
PERR GIDDENS; JENNIFER GONZALEZ;
MAURICE GORDON; EVERARDO J.
JUAREZ; YOON SOO KWAK; MARIA
HERMINIA MOORE; CARLOS
MORALES COLON; SHAWN S.
MULLEN; TRACY A. NOCK;
MERCELANT OCEAN; LAVI ORAS;
CLAUDIA ORTEGA; JUAN PAGAN
SANTIAGO; MICHELLE POINTDUJOUR;
GLORIA R. PUMPHREY; JOAN
QUINONES;







17

Appeal: 09-1917

Document: 68

18

Date Filed: 06/07/2011

Page: 18 of 59

PEREZ v. MOUNTAIRE FARMS

AMALIA E. ROMERO; JESSICA M.
ROSARIO RIVERA; IVRAY SAULS;
VIERGELA SENAT; JESSIE R.
SINGLETARY; ANNIE L. STEPHENS;
OLIVER THORNTON; LAURA TOVAR;
JUDITH WILLIAMS; SUZETTE JEAN
BAPTISTE; PAULETTE CHARLERON;
MARTHA CESAR; LELIE DICE;
SHARON L. EATON; LEFILS
FLORESTAL; MELVINA MARIE GIBBS;
FREDIS A. GUZMAN; MICHAEL A.
JACKSON; RAYMOND JOHNSON;
WILFRID LENEUS; FRANCOIS
LIFRANCE; AUGUSTO LOPEZ; ONER
O. NEVAREZ ORTIZ; ALCE ODARIS;
MILAGRO DORIS PASCUAL; ROLAND
H. RAUT; CARLOS M. ROBLES
DELGADO; JUAN A. SANTIAGO
VELASQUEZ; LEON SMITH; BRENDA
STURGIS; NOELIA I. VARGAS;
REYNALDO VEGA; VALERIE
WASHINGTON; LAURA ASCENCIO;
MAGDALENA BRAVO; ELFISE
CASSEUS; JOCELINE DESFINES; ARIEL
DIAZ MORALES; JOHN H. EVANS;
LOURDA MARIE EXANTUS; SELBO
FREJUSTE; WILKELY GARCIA; ELVIRA
GONZALEZ; MARIA GONZALEZ
MONTERROZO; KARINA GUOXARQUETA; RENE GUTIERREZ; WANDA
I. MELENDEZ; PHILLIPE MONFISTON;
JULIANA G. MONTERROZO; MARIE
GABRIELLE MONTILUS; CARLOS M.
MUNIZ TORREZ; DONNE OGUEZANA;
FRANTZ PIERRE;







Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 19 of 59

PEREZ v. MOUNTAIRE FARMS

YOUBENS PIERRE; VALERIE PINKETT;
GUILSON POLYNICE; TIMOTHY
PUMPHREY; CHRISTOPHER
RODRIGUEZ; VICTOR RODRIGUEZ;
BAYRON ROJAS; ELIESE ROMAIN;
MARIE L. ROSIER; ISMAEL RUPERTO;
CRAIG SATCHELL; DONTA E.
VICKERS; JASON TOVAR; JUAN
PEDRO VASQUEZ; JUN JIE ZHENG;
DIANA ALCIUS; CLARENCE BURTON;
HECTOR D. CABAN; RUBEN
CARDONA LUGO; FIRANA
DESRAVINES; MATHURIN EXUME;
CHOISIUS FLORESTAL; PEDRO GIL
GALINDO; SERGIO HERRERA;
CHARLES LECIUS; DULCE JESSICA
LEYVA; ABNER MALDONADO;
BERNARD MONTULUS; CARLINE
MURAT; DONEL PIERRE; JEAN M.
PIERRE-LOUIS; SARAI RODRIGUEZ
RAMOS; ELIZABETH ROSARIO; ZAIDA
IVEETT SANTOS CORREA; ANTHONY
T. HOUSTON; BERNARDA VENTURA;
AURELIA GIL VENTURA; MARGARITA
GIL VENTURA; JEAN LESLY
CHARLES; JACQUES DECEMBRE;
MARIE YANICK DELVA; JEAN
DUMONVIL LIMA; MARIE M.
GUERRIER; ARISTEN ILERA; LAUMISE
ILERA; ROBELDO LOPEZ; AMERICA
D. MACEDO; REYMUNDO MARTINEZ;
TOMAS MAZARIEGOS VELASQUEZ;
JEAN MONDESTIN;







19

Appeal: 09-1917

Document: 68

20

Date Filed: 06/07/2011

Page: 20 of 59

PEREZ v. MOUNTAIRE FARMS

JEAN LOUIS NOEL; RAMIRO
NORIEGA; MIGUEL A. ORTIZ
SERRANO; OMAIRA OTERO MARRERO;
LARRY D. PHILLIPS; AMELICE
PIERRE; GADOUL PIERRILUS; JULIO
ANGEL SANTIAGO PADILLA; RANDY
DE JESUS SOTO,
Claimants,
PUBLIC JUSTICE CENTER; LEGAL AID
BUREAU, INCORPORATED; LEGAL AID
JUSTICE CENTER; MARYLAND
EMPLOYMENT LAWYERS
ASSOCIATION; METROPOLITAN
WASHINGTON EMPLOYMENT LAWYERS
ASSOCIATION; SECRETARY OF LABOR,
U.S. Department of Labor,
Amici Supporting Appellant.







Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(1:06-cv-00121-AMD)
Argued: January 26, 2011
Decided: June 7, 2011
Before WILKINSON and KEENAN, Circuit Judges, and
Irene C. BERGER, United States District Judge for the
Southern District of West Virginia, sitting by designation.

Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 21 of 59

PEREZ v. MOUNTAIRE FARMS

21

Affirmed in part, vacated in part by published opinion. Judge
Keenan wrote the majority opinion, in which Judge Berger
joined. Judge Wilkinson wrote an opinion concurring in part
and concurring in the judgment.

COUNSEL
ARGUED: James Larry Stine, WIMBERLY, LAWSON,
STECKEL, SCHNEIDER & STINE, PC, Atlanta, Georgia,
for Appellants/Cross-Appellees. C. Christopher Brown,
BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Appellees/Cross-Appellants. Nickole Carrieanna
Winnett, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Amici Curiae. ON BRIEF: Elizabeth
K. Dorminey, WIMBERLY, LAWSON, STECKEL,
SCHNEIDER & STINE, PC, Atlanta, Georgia, for
Appellants/Cross-Appellees. Monisha Cherayil, PUBLIC
JUSTICE CENTER, Baltimore, Maryland, for Amici Curiae
Public Justice Center, Legal Aid Bureau, Incorporated, Legal
Aid Justice Center, Maryland Employment Lawyers Association, and Metropolitan Washington Employment Lawyers
Association. M. Patricia Smith, Solicitor of Labor, William C.
Lesser, Acting Associate Solicitor, Paul L. Frieden, Counsel
for Appellate Litigation, UNITED STATES DEPARTMENT
OF LABOR, Washington, D.C., for Amicus Curiae Secretary
of Labor.

OPINION
KEENAN, Circuit Judge:
Luisa Perez, an employee of Mountaire Farms, Inc. and
Mountaire Farms of Delaware, Inc. (collectively, Mountaire),
filed this action on behalf of herself and similarly-situated
employees (collectively, the employees) to recover wages and

Appeal: 09-1917

Document: 68

22

Date Filed: 06/07/2011

Page: 22 of 59

PEREZ v. MOUNTAIRE FARMS

liquidated damages under the Fair Labor Standards Act of
1938 (FLSA), 29 U.S.C. §§ 201, et seq., for time spent donning and doffing protective gear during the workday at Mountaire’s poultry processing plants. The district court held that
the activities identified by the employees are compensable as
"work" under the FLSA, and that Mountaire’s failure to pay
the employees for these activities constituted a violation of
the FLSA.
We agree with the district court in substantial part and hold
that the time spent donning and doffing protective gear at the
beginning and the end of each workday is compensable as
"work" under the FLSA. However, based on this Court’s decision in Sepulveda v. Allen Family Foods, Inc., 591 F.3d 209
(4th Cir. 2009), cert. denied, 131 S. Ct. 187 (2010), decided
after the district court entered judgment in the present case,
we are required to hold that the mid-shift donning and doffing
of protective gear at the employees’ meal break is not compensable. Perez v. Mountaire Farms, Inc., 610 F. Supp. 2d
499, 516 (D. Md. 2009).
Additionally, we affirm the district court’s holding that
Mountaire’s violations of the FLSA were not "willful" and,
accordingly, a two-year statute of limitations is applicable to
the employees’ claims for "back pay." Lastly, we affirm the
district court’s holding that Mountaire acted in good faith and
the court’s resulting decision declining to award liquidated
damages to the employees.
I.
Mountaire is a company that engages in the slaughtering,
processing,1 and distribution of chickens and chicken parts.
Mountaire operates chicken processing plants in Selbyville
and Millsboro, Delaware.
1

Chicken processing includes the hanging, cutting, and deboning of
chickens.

Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 23 of 59

PEREZ v. MOUNTAIRE FARMS

23

Mountaire pays the employees based on "line time," which
begins when the first chicken arrives at the first work station
on the "production line" of each department, and ends when
the last chicken leaves the last work station on each "production line." Mountaire does not pay its employees for any of
the time spent donning and doffing their protective gear.
Mountaire’s employees who work on the "production line"
butchering and processing chickens are required to wear certain protective gear, including ear plugs, "bump caps,"2
smocks, hair and beard nets, and steel-toed rubber boots.
Depending on their job assignment, employees also are
required to wear other protective gear such as
"nitrile/latex/rubber" gloves, aprons, safety glasses, cutresistant gloves, chain gloves, and sleeves.3
As required by Mountaire’s company rules and the regulations promulgated by the United States Department of Agriculture, 9 C.F.R. § 416.5, and the Occupational Safety and
Health Administration (OSHA), 29 C.F.R. § 1910.132(a), the
employees must don their protective gear, beginning with
their smocks, before starting work on the "production line."
The employees typically don their protective gear next to their
lockers, in the bathrooms, in the production area, or in the
hallways as they walk to their work stations.
Once the employees enter the production area, they must
sanitize their protective gear by walking through a foot bath
and by splashing sanitizing solution on their aprons. Employees who wear gloves must dip their gloves into a sanitizing
solution, and employees who are not required to wear gloves
must wash their hands.
2

A "bump cap" is a plastic hat that resembles a construction helmet.
All the items of protective gear referenced in this paragraph will be
referred to collectively in this opinion as "protective gear."
3

Appeal: 09-1917

Document: 68

24

Date Filed: 06/07/2011

Page: 24 of 59

PEREZ v. MOUNTAIRE FARMS

Mountaire provides its employees a thirty-six minute
unpaid meal break. Although not required explicitly to do so
by Mountaire, almost all the employees sanitize their aprons,
boots, and gloves before leaving the production area for their
lunch break so that they may eat without blood and raw
chicken parts on their persons. Employees usually doff their
aprons and gloves during the meal break. At the end of the
meal break, before re-entering the production floor, the
employees are required by Mountaire’s rules and by the
Department of Agriculture and OSHA regulations to again
don their protective gear.
At the end of each work shift, before leaving the plant, the
employees doff their protective gear. The employees usually
place their soiled smocks in hampers located in the plant’s
hallways. Each day, Mountaire launders the smocks and provides clean smocks to its employees on racks located in the
plant’s hallways. The employees store their remaining protective gear in lockers that are provided by Mountaire. Every Friday, the employees must take home all their protective gear
stored in the lockers because the locker rooms are cleaned on
the weekends.
After the employees filed their complaint in this case,
Mountaire changed its policy to allow employees to take their
smocks home. Although the employees signed written forms
to indicate that they read and understood the policy, many
employees refrained from taking the smocks home.
II.
In January 2006, employees of two Mountaire facilities,
located in Millsboro and Selbyville, Delaware, filed a complaint in the district court against Mountaire under the FLSA
and Delaware state law. The employees sought compensation
for the time spent donning, doffing, and sanitizing (hereafter,
donning and doffing) their protective gear. The employees
also sought compensation for time spent walking to and from

Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 25 of 59

PEREZ v. MOUNTAIRE FARMS

25

their work stations and for working during their meal break.
The district court bifurcated the claims arising from the two
different plant facilities, and proceeded first to consider the
Millsboro employees’ claims (the Millsboro action), which is
the subject of the present appeal.
Mountaire moved for summary judgment in the Millsboro
action. The district court denied the motion for summary
judgment and certified the Millsboro action as a collective
action under § 216(b) of the FLSA. Perez v. Mountaire
Farms, Inc., 601 F. Supp. 2d 670, 673, 684 (D. Md. 2009).
In March 2009, the district court conducted a bench trial on
the Millsboro action. At the trial, both parties presented expert
witnesses who testified about the amount of time required for
the employees to don and doff their protective gear. These
expert witnesses conducted studies at the Millsboro facility to
measure the time spent by the Millsboro employees (hereafter, the employees) in the various acts of donning and doffing.
The employees’ expert witness, Dr. Robert Radwin,
recorded on videotape a group of randomly-selected employees donning and doffing their protective gear under actual
working conditions. In Dr. Radwin’s study, the donning process began when an employee first acquired an item of protective gear, and the doffing process ended when the employee
released the last item of gear. The results of Dr. Radwin’s
study showed that the total mean donning and doffing time by
an employee was 20.879 minutes. Using a "95 percent confidence interval,"4 Dr. Radwin concluded that the employees
spent a total time of 20.013 minutes per day donning and
doffing their protective gear.
4

See D. Barnes & J. Conley, Statistical Evidence in Litigation, § 3.15
at 107 (1986) (defining a confidence interval as a limit above or below or
a range around the sample mean, beyond which the true population is
unlikely to fall).

Appeal: 09-1917

Document: 68

26

Date Filed: 06/07/2011

Page: 26 of 59

PEREZ v. MOUNTAIRE FARMS

Mountaire’s expert witness, Dr. Jerry Davis, conducted a
study in a conference room, where he recorded on videotape
various employees who were selected and recruited by Mountaire. Before recording the study participants, Dr. Davis
informed them that he was conducting a study on donning and
doffing, and that the participants would be timed while donning and doffing their protective gear. As the participants
donned and doffed the protective gear in the conference room,
Dr. Davis timed them. Dr. Davis also calculated "walking
time" by multiplying the selected employees’ average walking
speed of 3.0 miles per hour by the average distance that the
employees typically walked from the locker room to the work
station on the production floor. Based on his calculations, Dr.
Davis concluded that the total time spent by these employees
donning, doffing, and walking to and from their work stations
was 10.2 minutes.
After the trial, the district court issued an opinion in which
it held that the time spent by the employees donning and doffing their protective gear at the beginning and end of a work
shift is compensable as "work" under the FLSA. Perez, 610
F. Supp. 2d at 516. The district court also held that these
activities are compensable as "work" when they occur midshift at the employees’ unpaid meal break. Id. at 521.
To calculate the amount of compensable time, the district
court compared the studies conducted by Dr. Davis and Dr.
Radwin, and ultimately declined to accept Dr. Davis’s conclusions regarding donning and doffing times. Instead, the district court relied on Dr. Radwin’s study to calculate the
compensable time spent by the employees in the acts of donning and doffing. However, the district court found that Dr.
Radwin’s time calculation of 20.879 minutes was "a slight
overestimation," and the district court accordingly found that
the total time spent donning and doffing was 17 minutes. Id.
at 524.
The district court also held that Mountaire did not willfully
violate the FLSA and that, therefore, the applicable statute of

Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 27 of 59

PEREZ v. MOUNTAIRE FARMS

27

limitations for the FLSA claims under 29 U.S.C. § 255(a) was
two years, rather than three years as asserted by the employees. Id. at 527. Additionally, the district court held that Mountaire acted in good faith and, accordingly, rejected the
employees’ claim for liquidated damages. Id.
III.
On appeal to this Court, Mountaire argues that the district
court erred in holding that Mountaire violated the FLSA by
failing to compensate its employees for time spent donning
and doffing their protective gear at the beginning and end of
their work shifts, and at their meal breaks. On cross-appeal,
the employees argue that the district court erred in concluding
that a two-year statute of limitations applies to the employees’
FLSA claims and in declining to award liquidated damages.
We review a district court’s judgment entered after a bench
trial under a "mixed standard of review." Universal Furniture
Int’l, Inc. v. Collezione Europa USA, Inc., 618 F.3d 417, 427
(4th Cir. 2010). Under this standard, we review the district
court’s findings of fact for clear error and conclusions of law
de novo. Id.
In determining whether the FLSA requires Mountaire to
compensate its employees for the time they spend donning
and doffing their protective gear, we begin our analysis with
the language of the statute. The FLSA provides that employers shall pay employees a minimum hourly wage for all
"hours worked." 29 U.S.C. §§ 206, 207. This statutory
requirement is applicable unless the time at issue is "de
minimis." See Anderson v. Mt. Clemens Pottery Co., 328 U.S.
680, 692 (1946). The term "work" is not defined in the FLSA,
and courts are left to determine the meaning of the term. See
IBP, Inc. v. Alvarez, 546 U.S. 21, 25 (2005).
When applying the term "work" to claims asserted under
the FLSA, the Supreme Court has defined the term broadly.

Appeal: 09-1917

Document: 68

28

Date Filed: 06/07/2011

Page: 28 of 59

PEREZ v. MOUNTAIRE FARMS

Id. For example, the Supreme Court has defined "the statutory
workweek" to include "all time during which an employee is
necessarily required to be on the employer’s premises, on
duty or at a prescribed workplace." Anderson, 328 U.S. at
690-91; see also Tenn. Coal, Iron & R. Co. v. Muscoda Local
No. 123, 321 U.S. 590, 598 (1944) (defining "work" as physical or mental exertion, whether burdensome or not, which is
controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business).
Under the "continuous workday rule," the compensable
workday begins with the first "principal activity" of a job and
ends with the employee’s last "principal activity." Alvarez,
546 U.S. at 29 (citing 29 C.F.R. § 790.6(b)). This Court has
determined, however, that the continuous workday does not
include time spent during a "bona fide meal period."
Sepulveda, 591 F.3d at 216.
Although the FLSA requires that an employer compensate
an employee for "work," the Portal-to-Portal Act of 1947 (the
Portal Act), 29 U.S.C. §§ 251-62, amended the FLSA and
relieves employers of the obligation to compensate an
employee for "activities which are preliminary to or postliminary to [the] principal activity or activities" of a job. The Portal Act excludes from compensation such activities that
"occur either prior to the time on any particular workday at
which such employee commences, or subsequent to the time
on any particular workday at which he ceases, such principal
activity or activities." 29 U.S.C. § 254(a)(2).
Preliminary and postliminary activities are compensable,
however, if they are an "integral and indispensable part of the
[employee’s] principal activities." Steiner v. Mitchell, 350
U.S. 247, 256 (1956). As explained by the Supreme Court, an
"integral and indispensable" activity is itself a principal activity for purposes of the Portal Act. Alvarez, 546 U.S. at 37.

Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 29 of 59

PEREZ v. MOUNTAIRE FARMS

29

In Steiner, the Supreme Court first applied the "integral and
indispensable" test to determine whether workers in a battery
manufacturing plant should be compensated for time spent
changing clothes at the beginning and end of work shifts, and
taking showers at the end of the workday. 350 U.S. at 248.
The evidence presented in Steiner showed that during the
work shifts, employees at the manufacturing plant worked
with toxic chemicals, which emitted dangerous fumes that
permeated the plant and created a risk of serious injury to the
employees. Id. at 249-50. To protect the workers from continuing exposure to the chemicals, the custom and practice in the
industry was to require employees to change clothes and to
take showers at the end of their work shifts. Id. at 250.
In accordance with state law, the employer in Steiner provided its employees with shower facilities and locker rooms.
Id. at 251. The employer also provided "old but clean work
clothes" free of charge for its employees to wear while working. Id. The employees changed into these "work clothes"
when they arrived at work, and changed out of these "work
clothes" and took showers at the end of their work shifts. Id.
The Supreme Court held that the time spent by the employees in changing clothes and in taking showers was compensable under the FLSA as "work." Id. at 256. In its analysis, the
Supreme Court acknowledged that the case did not involve
"changing clothes and showering under normal conditions"
and stressed the important health and safety risks associated
with the process of manufacturing batteries. Id. at 248-49.
Although the Court did not define the phrase "integral and
indispensable," the Court stated that "it would be difficult to
conjure up an instance where changing clothes and showering
are more clearly an integral and indispensable part of the principal activity of the employment than in the case of these
employees." Id. at 256.
This Court has not yet applied the "integral and indispensable" test established in Steiner, for we were not required to

Appeal: 09-1917

Document: 68

30

Date Filed: 06/07/2011

Page: 30 of 59

PEREZ v. MOUNTAIRE FARMS

determine its application in Sepulveda v. Allen Family Foods,
Inc. In that case, time spent changing clothes was noncompensable according to a custom or practice under a collective bargaining agreement as was authorized by § 203(o) of
the FLSA. See 29 U.S.C. § 203(o) ("[T]here shall be excluded
any time spent in changing clothes or washing at the beginning or end of each workday which was excluded . . . by the
express terms of or by custom or practice under a bona fide
collective-bargaining agreement applicable to the particular
employee."). We accordingly addressed the question whether
donning and doffing protective equipment in a poultry plant
was "changing clothes" for purposes of that provision. 591
F.3d at 214.
The decision in Sepulveda did not reach the primary issue
we are called upon to resolve today, but in fact noted that "[i]t
is an open question in this circuit whether donning and doffing protective gear is . . . ‘integral and indispensable’ to the
principal activity of poultry processing." Id. However, two of
our sister circuits have applied the "integral and indispensable" test with regard to the donning and doffing of protective
gear in food processing plants.
In Franklin v. Kellogg Co., 619 F.3d 604 (6th Cir. 2010),
the Sixth Circuit considered the issue of employee compensation for time spent donning and doffing food safety uniforms
and protective gear at the beginning and the end of work
shifts. The protective gear at issue included hair and beard
nets, safety glasses, ear plugs, and "bump caps." Id. at 608.
The Sixth Circuit applied the Steiner test, asking whether
the activities of donning and doffing were an "integral and
indispensable" part of the principal activity of the employment. Id. at 619-20. The Sixth Circuit answered this question
in the affirmative, reasoning that the activities were required
by the manufacturer, and ensured untainted products and safe
and sanitary working conditions. Id. at 620.

Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 31 of 59

PEREZ v. MOUNTAIRE FARMS

31

In a case involving the donning and doffing of protective
gear at a meat processing plant, Alvarez v. IBP, Inc., 339 F.3d
894 (9th Cir. 2003), aff’d, 546 U.S. 21 (2005),5 the Ninth Circuit also applied the Steiner test. The court considered
whether these activities of donning and doffing at the beginning and end of a work shift were "integral and indispensable"
to the principal activity of the employment, inquiring whether
the activities were "necessary to the principal work performed
and done for the benefit of the employer." Id. at 902-03.
The Ninth Circuit concluded that the "integral and indispensable" test set forth in Steiner was satisfied with regard to
the donning and doffing of all the protective gear at issue. Id.
at 903. However, the court excluded from compensation the
time employees spent donning and doffing "non-unique" gear
such as hard hats and safety goggles, holding that although
such gear also was "integral and indispensable" to the principal activities of employment, the time spent donning and doffing those items was "de minimis." Id. at 903-04.
In contrast, the Second Circuit has interpreted the holding
in Steiner more narrowly. In Gorman v. Consolidated Edison
Corp., 488 F.3d 586, 593 (2d Cir. 2007), the court held that
donning and doffing is only "integral and indispensable" to a
principal activity when the principal activity is performed in
a lethal environment.
Upon our consideration of these opposing views, we conclude that application of the Steiner test is not confined to the
narrow factual circumstances of a lethal manufacturing envi5

On appeal to the Supreme Court, the employers in Alvarez did not
challenge the Ninth Circuit’s holding that, in light of Steiner, donning and
doffing of protective equipment is compensable under the Portal Act.
Alvarez, 546 U.S. at 32. Instead, the employers appealed a separate ruling
regarding the compensability of walking time. Id. The Supreme Court held
that walking time is compensable if it occurs after the beginning of the
employee’s first principal activity and before the end of the employee’s
last principal activity. Id. at 37.

Appeal: 09-1917

Document: 68

32

Date Filed: 06/07/2011

Page: 32 of 59

PEREZ v. MOUNTAIRE FARMS

ronment. Rather, as the Supreme Court explained in Steiner,
the facts of that case simply presented an obvious example of
an activity that is "integral and indispensable." Steiner, 350
U.S. at 256. Therefore, we hold that the Steiner test is applicable to issues of donning and doffing at the beginning and the
end of work shifts in the poultry processing industry. See
Franklin, 619 F.3d at 619-20; Alvarez, 339 F.3d at 902-03.
IV.
We turn now to apply the Steiner test to the facts of the
present case. In the absence of any binding authority defining
the term "integral and indispensable," we observe that the
Ninth Circuit, in its Alvarez decision, provided a definition of
the phrase that follows the analysis of Steiner by considering
the conduct at issue in the context of the employer’s principal
activities. Under the Ninth Circuit’s definition in Alvarez, the
donning and doffing of protective gear at the beginning and
the end of a work shift are acts "integral and indispensable"
to the employer’s principal activity when the donning and
doffing are: 1) necessary to the principal work performed; and
2) primarily benefit the employer. See Alvarez, 339 F.3d at
902-03. An act is necessary to a principal activity if that act
is required by law, by company policy, or by the nature of the
work performed. Id. at 903 (citing 29 C.F.R. § 790.8(c) n.65).6
Other circuit courts have used a similar definition of the term
"integral and indispensable." See Franklin, 619 F.3d at 620;
Bonilla v. Baker Concrete Constr., Inc., 487 F.3d 1340, 1344
(11th Cir. 2007).
Because we agree that the two-part definition employed by
6

The Secretary of Labor has issued interpretive statements that explain
the meaning of "principal activities" as stated in the Portal Act. See 29
C.F.R. § 790.8. For example, according to footnote 65 of 29 C.F.R.
§ 790.8(c), changing clothes on an employer’s premises during the workday may be a principal activity if changing clothes is "required by law, by
rules of the employer, or by the nature of the work."

Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 33 of 59

PEREZ v. MOUNTAIRE FARMS

33

the Ninth Circuit in Alvarez provides a consistent construct
for application of the Steiner test, we apply that two-part definition to determine whether the employees’ acts of donning
and doffing at the beginning and the end of work shifts are
"integral and indispensable" to Mountaire’s principal activities. In adopting this definition from Alvarez, we reject Mountaire’s contention that this definition effectively will
undermine application of the Portal Act. The requirements of
this definition, that an act be necessary to the principal work
and primarily benefit the employer, ensure that an employee
will only be compensated for such acts that are essential to the
principal activity, rather than those that merely precede or follow in a temporal sense the performance of that principal
activity. Therefore, we turn now to consider the acts of donning and doffing in the present case, which occur at the beginning and the end of the employees’ work shifts.
A.

Donning and Doffing at Beginning and End of
Work Shifts

As an initial matter, and contrary to Mountaire’s suggestion, we decline to distinguish the employees’ protective gear
as either "specialized" or "generic." This distinction was not
made in Steiner. The work clothes at issue in Steiner were
simply described as "old but clean work clothes," and the
Supreme Court did not characterize the clothes as "special."
See Steiner, 350 U.S. at 251. Thus, we hold that these terms
are not relevant to our "integral and indispensable" analysis,
and we do not classify the employees’ protective gear in this
manner.
To determine whether the employees’ acts of donning and
doffing at the beginning and the end of their work shifts are
"integral and indispensable" to Mountaire’s principal activity,
we first consider whether those acts are necessary to the principal work of chicken processing. See Alvarez, 339 F.3d at
902-03. Mountaire does not dispute the district court’s finding
that the employees are required as a matter of federal law to

Appeal: 09-1917

Document: 68

34

Date Filed: 06/07/2011

Page: 34 of 59

PEREZ v. MOUNTAIRE FARMS

wear certain protective gear on the "production line." These
legal requirements are based on regulations concerning sanitation promulgated by the United States Department of Agriculture, and on safety regulations established by OSHA. See 29
C.F.R. § 1910.132(a); 9 C.F.R. § 416.5.
In order to comply with these legal requirements, Mountaire’s company policy mandates that the employees don and
sanitize certain items before entering the production area. The
employees must don "bump caps," and hair and beard nets, in
order to prevent hair from falling into the chicken products.
The employees are required to wear specific types of ear
plugs, which vary depending on which section of the plant the
employee is located. Also, the employees must don smocks
and aprons to prevent food contamination. Clean smocks are
so important to chicken processing that Mountaire launders
the smocks daily and provides them to the employees free of
charge.
The employees also are required to sanitize their protective
gear by walking through a foot bath and by splashing sanitizing solution on their aprons. Employees who wear gloves
must dip their gloves into a sanitizing solution, and employees
who are not required to wear gloves must wash their hands.
Any Mountaire employee who fails to comply with these
company rules is subject to discipline or termination.
The district court concluded that certain activities are necessary for chicken processing even though these activities are
not required by law or company policy. The district court
found that although employees are not required to wear clean
gloves, the nature of the work makes this necessary so that the
employees can hold the knives safely while handling the
blood and fat from the chickens.
This factual record amply demonstrates that the donning
and doffing of the employees’ protective gear at the beginning
and end of work shifts is necessary to their work on the "pro-

Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 35 of 59

PEREZ v. MOUNTAIRE FARMS

35

duction line." The overriding concerns of safety and sanitation
plainly mandate this conclusion.
Our conclusion that these activities are necessary to
chicken processing, however, does not of itself end the
inquiry whether these activities are "integral and indispensable" to that work. Alvarez, 546 U.S. at 40-41. We also must
consider whether the record supports a conclusion that the
employees’ acts of donning and doffing primarily benefit
Mountaire. Alvarez, 339 F.3d at 902-03.
The district court recognized that the employees’ donning
and doffing of protective gear at the beginning and end of
their work shifts benefits the employees by protecting them
from workplace hazards. However, the district court found
that these activities primarily benefit Mountaire by "protect[ing] the products from contamination, help[ing] keep workers’ compensation payments down, keep[ing] missed time to
a minimum, and shield[ing] the company from pain and suffering payments." Perez, 610 F. Supp. 2d at 518. Based on the
considerable factual record before us establishing the importance of the protective gear in ensuring the safety and sanitation of the "production line," we conclude that the employees’
acts of donning and doffing at the beginning and the end of
their work shifts primarily benefit Mountaire.
Because these acts of donning and doffing protective gear
at the beginning and end of the employees’ work shifts are
necessary to Mountaire’s chicken processing and primarily
benefit Mountaire, we conclude that these activities are "integral and indispensable" to chicken processing. We find further
support for this conclusion in the Supreme Court’s recent discussion of a closely related issue. In Alvarez, the Court held
that post-donning and pre-doffing time spent walking between
the locker room and the production line in a food processing
plant was compensable, because under the "continuous workday" rule, the compensable workday includes all activities
that occur "after the beginning of the employee’s first princi-

Appeal: 09-1917

Document: 68

36

Date Filed: 06/07/2011

Page: 36 of 59

PEREZ v. MOUNTAIRE FARMS

pal activity and before the end of the employee’s last principal
activity." 546 U.S. at 30, 37. Based on this holding, the Court
necessarily accepted the conclusion of the courts below that
the donning and doffing in that case was "integral and indispensable" to the principal activity of food processing. See id.
at 32. The Court clarified that donning and doffing began and
ended the continuous workday because "any activity that is
‘integral and indispensable’ to a ‘principal activity’ is itself a
‘principal activity.’" Id.
Although the parties in Alvarez did not challenge on appeal
the conclusion that donning and doffing protective gear was
integral and indispensable to the principal activity of poultry
processing, it would be illogical to conclude that the Supreme
Court would have held the walking time to be compensable
if it entertained serious doubts regarding the compensability
of the donning and doffing activities themselves. Accordingly, in our view, it is manifest that the employees’ acts of
donning and doffing are principal activities that mark the
beginning and the end of the workday. Under the continuous
workday rule, therefore, the employees are entitled to compensation for those activities and any other activities, such as
sanitizing and walking, which occur between the first and last
principal activities. See id. at 28.
Mountaire argues, nevertheless, that once it changed its
company policy to allow employees to take home their
smocks, the donning and doffing activities at the beginning
and the end of each work shift no longer were compensable
as "work." In support of its argument, Mountaire relies on a
memorandum issued by the Secretary of Labor which, in
effect, stated that donning and doffing is not compensable if
employees have "the option and the ability to change into the
required gear at home." See DOL Wage & Hour Adv. Mem.
No. 2006-2 (May 31, 2006); see also Bamonte v. City of
Mesa, 598 F.3d 1217, 1227-31 (9th Cir. 2010).
Under the facts of the present case, however, Mountaire’s
change in company policy does not alter our conclusion. Even

Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 37 of 59

PEREZ v. MOUNTAIRE FARMS

37

if we assume, without deciding, that the Secretary’s position
on this issue has merit, the district court found that Mountaire’s "take home" policy was "illusory." Perez, 610 F. Supp.
2d at 519-20. According to the district court, even after the
"take home" policy changed, many employees continued to
leave their smocks at the plant. The district court concluded
that it was "illogical," "onerous," and "impractical" for
employees to take their smocks home, because Mountaire
provides hampers for dirty smocks and provides clean smocks
free of charge.
This factual record supports the district court’s conclusion
that the employees do not have a meaningful option to don
and doff their protective gear at home. Moreover, the nature
of the employees’ jobs, including the need for strict compliance with sanitation measures, necessitates that the employees
don and doff their gear at their workplace. We therefore conclude that the employees’ acts of donning and doffing at the
beginning and end of their work shifts are compensable as
"work," despite Mountaire’s stated policy allowing its
employees to don and doff certain protective equipment at
home.
B.

Mid-Shift Donning and Doffing

We next address the issue whether the employees’ acts of
donning and doffing at their meal break are compensable as
"work" under the FLSA. As an initial matter, we disagree
with Mountaire’s argument that our holding in Roy v. County
of Lexington, 141 F.3d 533 (4th Cir. 1998), requires us to
focus our analysis on the unpaid meal break as a whole, rather
than on the time the employees spend donning and doffing
their protective gear. Our decision in Roy does not counsel
such a result.
In Roy, certain emergency medical service personnel
requested compensation for their entire meal break, because
they were required to be "on call" to respond to emergencies

Appeal: 09-1917

Document: 68

38

Date Filed: 06/07/2011

Page: 38 of 59

PEREZ v. MOUNTAIRE FARMS

during the entire break. 141 F.3d at 544. In conducting an
analysis of the entire meal break, this Court denied the claim
for compensation, concluding that the meal period, as a
whole, predominately benefitted the employees. Id. at 545.
In the present case, however, the employees do not seek
compensation for their entire meal break. Rather, the employees seek compensation only for the time periods in which the
acts of donning and doffing occur, activities that they allege
occur before and after their "bona fide meal period." Therefore, we are not confronted here with an issue whether the
entire meal period predominately benefits the employer, but
instead decide whether the time periods during which these
activities occur, and for which compensation is sought, predominately benefit the employer. See id.
The district court found that the employees’ acts of donning
and doffing at the meal break benefit Mountaire by helping to
"limit [Mountaire’s] products’ exposure to bacteria and ensure
that products are uncontaminated and clean." Perez, 610 F.
Supp. 2d at 521. Although the district court acknowledged
that the employees also benefit from being able to eat "without blood and other chicken products on their persons," the
district court found that the benefit to Mountaire outweighs
the benefit to the employees. Id.
These factual findings are well-supported by the present
record and, therefore, should be applied in the resolution of
this appeal. See Universal Furniture, 618 F.3d at 427. If we
were writing on a clean slate, we would hold that based on the
district court’s factual findings, these activities are not part of
the "bona fide meal period" but are compensable as "work"
under the continuous workday rule.7 See Alvarez, 546 U.S. at
29; Roy, 141 F.3d at 545.
7

Mountaire also maintained at oral argument that donning and doffing
at the meal break is not compensable on the additional ground that the
employees "don’t have to eat." We find no merit in this argument because,
apart from its fatuous aspect, the argument ignores the fact that Mountaire
is required by state law to provide a meal break to an employee if the
employee works 7.5 or more consecutive hours. See 19 Del. Code
§ 707(a).

Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 39 of 59

PEREZ v. MOUNTAIRE FARMS

39

We are bound, however, by circuit precedent. In Sepulveda,
this Court held, as a matter of law, that acts of donning and
doffing occurring before and after employees eat their meals
are non-compensable because these acts are part of the "bona
fide meal period." 591 F.3d at 216. Alternatively, this Court
concluded that the time spent by employees conducting such
activities was non-compensable on the ground that the time
was de minimis.8 Id. The full text of the Court’s discussion of
this issue in Sepulveda was as follows:
Lastly, the employees seek compensation for the
time they spend during their lunch breaks donning
and doffing a few items, washing, and walking to
and from the cafeteria. This time is noncompensable, however, because it is part of a bona
fide meal period, see 29 C.F.R. § 785.19 ("Bona fide
meal periods are not worktime."), and, in the alternative, de minimis. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946) ("When the
matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours,
such trifles may be disregarded.").
Id.
In resolving this issue as a matter of law, the Court in
Sepulveda appears to have departed from our holding in Roy,
which instructs that the issue whether employees are entitled
to receive compensation as a result of particular activities performed incident to a meal break presents "a question of fact
to be resolved by appropriate findings of the trial court." Roy,
141 F.3d at 545 (quoting Skidmore v. Swift, 323 U.S. 134,
8

Because the issue of compensation for donning and doffing in
Sepulveda was limited to the meal break and did not include the question
of compensation for donning and doffing at the beginning and the end of
the employees’ work shifts, this Court’s de minimis analysis in that case
also applied only to these activities taking place at the meal break. Id.

Appeal: 09-1917

Document: 68

40

Date Filed: 06/07/2011

Page: 40 of 59

PEREZ v. MOUNTAIRE FARMS

136-37 (1944)). In Skidmore, the Supreme Court specifically
advised against "lay[ing] down a legal formula to resolve
[FLSA] cases so varied in their facts."9 323 U.S. at 136. Thus,
we conclude that the decision in Roy requires the "predominant benefit" factual analysis that the district court conducted
in the present case.10
Nevertheless, because the activities in Sepulveda involved
meal break donning and doffing at a poultry processing plant,
and the character of those activities cannot be distinguished
substantively from the activities at issue here, we are required
to follow this Court’s holding resolving that issue. See United
States v. Prince-Oyibo, 320 F.3d 494, 501 (4th Cir. 2003).
Accordingly, we conclude that the employees are not entitled
to compensation for the time spent donning and doffing protective gear incident to the meal period.11 Sepulveda, 591 F.3d
at 216.
9

Additionally, the language of 29 C.F.R. § 785.19, cited in Sepulveda
to support its conclusion that meal break donning and doffing is noncompensable, suggests that such a finding would be factual as opposed to
legal in nature.
10
The decision in Sepulveda appears to have assumed, without regard to
the nature and duration of the activities performed, that the donning and
doffing activities were part of a "bona fide meal period" simply because
they occurred immediately before and after the employees ate their midshift meal. The determination of entitlement to compensation under the
FLSA, however, is necessarily factual in nature because the outcome
depends on the particular activities involved and the amount of time
required for their performance. See Roy, 141 F.3d at 545. Resolving the
issue of compensation for donning and doffing at a meal break as a matter
of law effectively eliminates a court’s consideration of facts that are usually unique to a given case, thereby impairing the ability of employees to
receive compensation for the performance of activities that predominantly
benefit the employer.
11
Because we are bound by the primary holding in Sepulveda, we do not
discuss its alternative holding that the time the employees spent donning
and doffing at the meal break was "de minimus." We note only that the
record in Sepulveda does not contain any facts regarding the time
expended in the performance of these activities.

Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 41 of 59

PEREZ v. MOUNTAIRE FARMS

C.

41

Calculation of Compensable Time

Having determined that the time the employees spend
donning and doffing at the beginning and the end of the work
shifts is compensable, we turn to consider the amount of time
that employees spend completing these activities. In order to
calculate the time that the employees spend donning and doffing, the district court considered the expert testimony of Dr.
Davis and Dr. Radwin.
According to Mountaire, the district court erred in rejecting
the results of Dr. Davis’s study and largely accepting Dr. Radwin’s conclusions regarding the calculation of compensable
time. We find no merit in Mountaire’s argument. The district
court clearly stated its reasons for rejecting Dr. Davis’s study
results. The district court found that Dr. Davis’s study was an
"academic . . . exercise" that did not reflect the employees’
normal donning and doffing process. Perez, 610 F. Supp. 2d
at 512. The district court also observed that Dr. Davis did not
randomly select the participants for his study, but permitted
Mountaire supervisors to choose the participants and to
exclude any members of the plaintiff class. Of additional concern to the district court, Dr. Davis’s study did not take into
account "the realities of the employees’ work" because it was
conducted in a conference room where all the required gear
was provided to the employees on a table. Id. Based on these
findings, we conclude that the district court did not abuse its
discretion in refusing to rely on the results of Dr. Davis’s
study.
In contrast, the district court described Dr. Radwin’s study
as a "practical real-time evaluation of the donning and doffing
process." Id. Dr. Radwin’s study considered the time that
employees spent walking in congested hallways and to various locations to obtain the protective gear. The district court
found that the study participants were randomly selected and
were recorded on videotape under actual working conditions.

Appeal: 09-1917

Document: 68

42

Date Filed: 06/07/2011

Page: 42 of 59

PEREZ v. MOUNTAIRE FARMS

The district court therefore relied on the results of Dr. Radwin’s study to calculate the compensable time.
Mountaire raises two objections concerning Dr. Radwin’s
study. First, Mountaire asserts that Dr. Radwin erred in beginning his measurement of the donning process when the
employees acquired their first piece of equipment, and in ending his measurements when the employees released their last
piece of equipment. According to Mountaire, Dr. Radwin
should not have included in his measurements the time period
between the employees’ acquisition of the gear and their
donning of the gear, and the time period between their doffing
and their release of the last piece of gear.
The First Circuit addressed this issue in Tum v. Barber
Foods, Inc., 360 F.3d 274, 283 (1st Cir. 2004), rev’d on other
grounds, IBP, Inc. v. Alvarez, 546 U.S. 21 (2005). There, the
court approved jury instructions defining the donning process
as including the employees’ acts in obtaining the gear, and the
doffing process as including the time necessary to place the
gear in a designated bin or locker. Id. at 282-83. We further
observe that the First Circuit’s holding on this issue in Tum
is consistent with the position of the Secretary of Labor.12 See
DOL Wage & Adv. Mem. No. 2006-2 n.1 (May 31, 2006).
We conclude that the First Circuit’s holding and the Secretary’s position are persuasive here, because Mountaire controlled the location of the employees’ donning and doffing at
the plant, and these acts are necessary to the employees’ ability to do their jobs. The employees obtained various pieces of
gear at different locations selected by Mountaire. Mountaire
provided clean smocks on racks located in congested hallways, and the employees stored their other protective gear in
lockers provided by the company. Employees donned their
12

Although we are not bound by the Secretary’s memorandum, we conclude that the memorandum is entitled to deference in accordance with the
principles stated in Skidmore. 323 U.S. at 139-40.

Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 43 of 59

PEREZ v. MOUNTAIRE FARMS

43

gear beside their lockers, in bathrooms, in the production area,
or in the busy hallways as they walked to their workstations.
Because of these conditions, the employees were not always
able to don their protective gear as soon as they obtained their
smocks.
At the end of the work shift, the employees doffed their
gear at various designated locations within the plant and
placed most of their protective gear in their lockers. The
employees deposited their soiled smocks in hampers that
Mountaire placed in the hallways. We conclude that, based on
these facts, the district court properly found that the time
spent by the employees after acquiring their protective gear
but before donning it, and after doffing the gear until fully
discarding it, is compensable.
Mountaire raises a separate argument, however, concerning
Dr. Radwin’s method of calculating the time expended by the
employees. According to Mountaire, Dr. Radwin improperly
calculated the total compensable time by adding the mean
times of each activity. Mountaire asserts that compensable
time instead should have been calculated by adding together
the minimum amounts of time expended by the bestperforming employee in completing each activity. We find no
merit in this argument because such a method of calculation
would not account for the fact that workers of different ages
and states of well-being, with varying degrees of agility, are
engaged in the performance of these activities. Thus, a calculation based on the summation of mean times provides a more
accurate representation of the amount of time that employees
working at the plant actually spend donning and doffing. We
therefore conclude that the district court did not err in relying
on the mean times provided by Dr. Radwin, and we now proceed to calculate the compensable time based on the results of
Dr. Radwin’s study.
Based on the district court’s rationale, after adjusting for
"outliers," the total compensable time for donning and doffing

Appeal: 09-1917

Document: 68

44

Date Filed: 06/07/2011

Page: 44 of 59

PEREZ v. MOUNTAIRE FARMS

was seventeen minutes.13 From this period of seventeen minutes, we must exclude the amount of time required for mealtime donning and doffing that the employees are precluded
from recovering by our decision in Sepulveda. According to
Dr. Radwin’s study, the mean time for mealtime donning and
doffing is 6.796 minutes. Therefore, the total time spent donning and doffing at the beginning and end of the workday
equals 10.204 minutes.
D.

"De Minimis" Issue

We now consider Mountaire’s claim that the time expended
by the employees in donning and doffing at the beginning and
the end of their work shifts is de minimis and therefore noncompensable, notwithstanding our holding that these activities
are part of the continuous workday as acts "integral and indispensable" to Mountaire’s principal activity. As the Supreme
Court has explained, the de minimis rule precludes employees
from recovering for compensable work "[w]hen the matter in
issue concerns only a few seconds or minutes of work beyond
the scheduled working hours." Anderson, 328 U.S. at 692.
According to the Court, compensation for "[s]plit-second
absurdities" is not justified by the policy of the FLSA. Id.
In applying the de minimis rule, we consider the aggregate
amount of time for which the employees are otherwise legally
entitled to compensation. See DOL Wage & Adv. Mem. No.
2006-2 n.1 (May 31, 2006). We do not, as Mountaire suggests, evaluate each task or group of tasks separately to determine if the time period is de minimis. Adopting Mountaire’s
13

Dr. Radwin concluded that the mean donning and doffing time
equaled 20.879 minutes. The district court found that this calculation was
a "slight overestimation" and concluded that the correct calculation was 17
minutes. Because Mountaire failed to challenge the method of the district
court’s recalculation in its opening brief, Mountaire has waived any argument concerning the district court’s adjustment of Dr. Radwin’s calculations. See Fed. R. App. P. 28(a)(9)(A); Yousefi v. I.N.S., 260 F.3d 318, 326
(4th Cir. 2001) (per curiam).

Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 45 of 59

PEREZ v. MOUNTAIRE FARMS

45

approach would undermine the purpose of the FLSA by
allowing employers to parcel work into small groups of tasks
that, when viewed separately, always would be considered de
minimis. Therefore, we reject Mountaire’s approach and consider whether the aggregate amount of time spent donning and
doffing each day at the beginning and the end of the work
shifts, a total of 10.204 minutes, is de minimis.
Mountaire argues, however, that 10.204 minutes is de
minimis as a matter of law. In support of its argument, Mountaire relies on this Court’s holding in Green v. Planters Nut
& Chocolate Co., 177 F.2d 187 (4th Cir. 1949). According to
Mountaire, this Court adopted "a ten-minute rule" in Green
establishing that otherwise compensable activities are rendered non-compensable when those activities do not exceed
a total of ten minutes per day.
We disagree that this Court has established such a "tenminute rule." In Green, the employees argued that they were
required to be present at their work station ten minutes before
the start of their work shifts and, therefore, were entitled to
compensation for that ten-minute period each day. 177 F.3d
at 188. This Court summarily rejected the employees’ claim
on the basis that the employees were not actually required to
be present for ten minutes before starting work, but merely
were admonished by the employer to arrive at their work stations soon enough to be able to start work on time. Id. Therefore, this Court concluded that the employees could not be
compensated additionally under the FLSA for any extra time
they spent at the work site to ensure that they would be able
to start their work shifts on time. Id. After stating this holding,
this Court observed that the ten-minute interval at issue was
de minimis. Id. This additional observation was not necessary
to the Court’s resolution of the factual issue that was the basis
of its holding, and we therefore conclude that the observation
is merely dicta.

Appeal: 09-1917

Document: 68

46

Date Filed: 06/07/2011

Page: 46 of 59

PEREZ v. MOUNTAIRE FARMS

Because the decision in Green does not control the present
issue, we must address whether the donning and doffing time
period of 10.204 minutes per day is de minimis and, therefore,
non-compensable under the holding of Anderson. 328 U.S. at
692. To date, we have not articulated factors to be considered
in determining whether a particular time period is de minimis.
However, the Ninth Circuit, in Lindow v. United States, 738
F.2d 1057, 1062-63 (9th Cir. 1984), in a holding adopted by
three of our sister circuits, articulated three factors to consider
when conducting a de minimis analysis: (1) the practical difficulty the employer would encounter in recording the additional time; (2) the total amount of compensable time; and (3)
the regularity of the additional work. See also De Asencio v.
Tyson Foods, Inc., 500 F.3d 361, 374 (3d Cir. 2007); Brock
v. City of Cincinnati, 236 F.3d 793, 804-05 (6th Cir. 2001);
Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d
706, 719 (2d Cir. 2001). We conclude that these factors set
forth in Lindow provide a useful and practical basis on which
to conduct this type of analysis. By applying these factors, we
adopt a de minimis analysis that necessarily requires a factual
inquiry that will change on a case-by-case basis.14 See Lindow, 738 F.2d at 1062.
With regard to the first factor, we observe that both experts
in the present case were able to measure the amount of time
required by employees to don and doff protective gear before
and after their work shifts. Thus, the time expended in these
activities is not so miniscule that it would be difficult to measure as a practical matter. See id. at 1062-63; see also 29
C.F.R. § 785.47.
14
We observe that our alternative holding in Sepulveda, concluding that
the time spent donning and doffing at the meal break was de minimis, does
not assist our analysis here. The Court did not state in its opinion in
Sepulveda the amount of time required for those activities of donning and
doffing. Thus, in the absence of any stated factual basis for the Court’s
conclusion that the time involved was de minimis, we are unable to apply
that finding to the present time period of 10.204 minutes.

Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 47 of 59

PEREZ v. MOUNTAIRE FARMS

47

Second, we consider the aggregate amount of compensable
time involved. There are 280 employees who "opted into" the
Millsboro action. Each of these employees was being paid at
a rate of ten dollars per hour, and each would be entitled to
compensation for 10.204 minutes of work per day. Applying
these figures to an annual work schedule of fifty weeks, the
amount of compensable time per employee is about 42.5
hours per year, which amounts to compensation of about $425
per employee per year. We conclude that this annual amount
per employee is significant for an employee earning ten dollars per hour, because that annual amount represents a full
week’s wages.
Additionally, the employees currently seek compensation
for a period of more than six years, due in part to the passage
of time since the filing of their complaint.15 Therefore, over
the six year period at issue here, each employee is entitled to
additional compensation of about $2,550. We conclude that
this aggregate amount per employee also is significant.
With regard to the third factor, the regularity of the additional work, it is undisputed that these activities of donning
and doffing at the beginning and the end of the employees’
work shifts occur regularly each workday. Therefore, based
on the three factors that we have adopted from Lindow, we
conclude that the compensable time at the beginning and the
end of the employees’ work shifts is not de minimis and, thus,
is compensable under the FLSA.
Mountaire argues, nevertheless, that it should not be
required to compensate the employees for the time spent
donning and doffing their protective gear at the beginning and
15

As we hold later in this opinion, the district court correctly determined
that a two-year statute of limitations applied to the employees’ claims.
Therefore, the six-year period for which compensation is due reflects that
limitations period plus the passage of time since the employees filed their
complaint.

Appeal: 09-1917

Document: 68

48

Date Filed: 06/07/2011

Page: 48 of 59

PEREZ v. MOUNTAIRE FARMS

the end of the work shifts, because any calculation of such
time would impose unreasonable and substantial administrative difficulties on Mountaire. In that regard, Mountaire
asserts that such a calculation of time would be costprohibitive, cumbersome, and inefficient. Mountaire asks that
we also consider the practical consequences of this type of
requirement, including that employers will be compelled to
"micro-manage" the amount of time employees spend donning and doffing to ensure that the employees are not wasting
time during these activities.
In our opinion, Mountaire overstates the extent of administrative difficulties involved in the calculation of the time
required for donning and doffing at the beginning and the end
of employees’ work shifts. Mountaire already has a timekeeping system that could be modified to include the time that
the employees spend performing these activities. We further
observe that Mountaire is free to set policies restricting the
employees’ nonessential conduct during the donning and
doffing process. Thus, we conclude that Mountaire’s arguments are unpersuasive, and we hold that the employees are
entitled to compensation for 10.204 minutes per work shift for
the time that they spend donning and doffing their protective
gear at the beginning and the end of their work shifts.
V.
A.
The employees argue on cross-appeal that the district court
erred in concluding that Mountaire’s FLSA violations were
not "willful." Under the Portal Act, a finding of "willful" violations subjects an employer to a three-year, rather than a twoyear, statute of limitations for "back pay" liability. 29 U.S.C.
§ 255(a).
To establish willfulness, the employees had the burden to
show that the employer "knew or showed reckless disregard

Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 49 of 59

PEREZ v. MOUNTAIRE FARMS

49

for the matter of whether its conduct was prohibited by the
statute." McLaughlin v. Richmond Shoe Co., 486 U.S. 128,
133 (1988). We review the district court’s finding of a lack of
willfulness for clear error. Martin v. Deiriggi, 985 F.2d 129,
136 (4th Cir. 1992).
As we have explained, prior to the present case, this Court
had not addressed the issue whether employees’ acts of donning and doffing protective gear at the beginning and the end
of their work shifts are "integral and indispensable" to poultry
processing, and our sister circuits have taken different
approaches to this issue. Compare Alvarez, 339 F.3d at 90203 with Gorman, 488 F.3d at 594. Because there was no binding authority directly addressing the issue of compensation for
the donning and doffing of protective gear at the beginning
and the end of work shifts, we hold that the district court did
not clearly err in concluding that Mountaire did not willfully
violate the FLSA by failing to compensate its employees for
these activities. Therefore, absent such a finding of "willfulness," we conclude that the two-year statute of limitation
applies. See 29 U.S.C. § 255(a).
B.
The employees also seek to recover liquidated damages.
We review the district court’s decision denying liquidated
damages for abuse of discretion. Roy, 141 F.3d at 548.
The FLSA provides for mandatory liquidated damages in
an amount equal to the unpaid overtime compensation. 29
U.S.C. § 216(b). Under the Portal Act, however, a district
court, in its sound discretion, may refuse to award liquidated
damages if "the employer shows to the satisfaction of the
court that the act or omission giving rise to such action was
in good faith and that he had reasonable grounds for believing
that his act or omission was not a violation of the [FLSA]."
29 U.S.C. § 260. The employer bears the burden of proof in

Appeal: 09-1917

Document: 68

50

Date Filed: 06/07/2011

Page: 50 of 59

PEREZ v. MOUNTAIRE FARMS

establishing this defense. Donovan v. Bel-Loc Diner, Inc., 780
F.2d 1113, 1118 (4th Cir. 1985).
In this case, we credit the district court’s finding that
Mountaire’s acts were not "willful" as evidence of Mountaire’s good faith. See Roy, 141 F.3d at 548. Mountaire also
produced evidence of its good faith by showing that the company relied on the advice of David Wylie, an attorney retained
by the National Chicken Council. See id. Mountaire presented
to the district court fourteen letters and memoranda from
Wylie in which he interpreted donning and doffing cases from
various jurisdictions, provided updates on plant surveys conducted by the Department of Labor, and advised poultry companies on how the companies could alter or maintain their
practices to remain in compliance with the FLSA, as interpreted by different courts. The district court found that Mountaire "clearly" changed its policies based on Wylie’s
information and advice.
We conclude that the district court did not clearly err in
finding that Mountaire acted in good faith by attempting to
follow the advice of Wylie. Although Wylie did not specifically advise Mountaire as its legal counsel, but provided the
advice on behalf of a private interest group, the information
was nonetheless relevant to Mountaire’s policy concerns and
was not overtly suspect in its conclusions. Therefore, we
affirm the district court’s denial of liquidated damages.
VI.
In conclusion, we affirm the district court’s judgment on
the FLSA claims relating to donning and doffing activities at
the beginning and the end of the employees’ work shifts, and
vacate the district court’s judgment regarding the mid-shift
donning and doffing claims. We also affirm the district
court’s decision applying a two-year statute of limitations and
denying the employees’ request for liquidated damages.

Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 51 of 59

PEREZ v. MOUNTAIRE FARMS

51

AFFIRMED IN PART, VACATED IN PART
WILKINSON, Circuit Judge, concurring in part and concurring in the judgment:
I am happy to concur in substantial part in Judge Keenan’s
thoughtful opinion. It does a fine job explaining why donning
and doffing at the beginning and end of the workday is compensable. The court rightly notes that this case presents a different question than Sepulveda v. Allen Family Foods, Inc.,
591 F.3d 209 (4th Cir. 2009). There, we addressed whether
donning and doffing personal protective gear was "changing
clothes" for purposes of 29 U.S.C. § 203(o), but that provision
applies exclusively to the collective bargaining context.
Sepulveda expressly reserved the question of whether donning
and doffing protective equipment outside of the collective
bargaining context is compensable, id. at 214, and I agree for
the most part that it is.
With respect to lunch-break doffing and donning (sections
IV.B and D), I write simply to note that the Fair Labor Standards Act does not require that every controversy over eversmaller increments of time be litigated out to three decimal
places. The de minimis rule in place at the Supreme Court and
the circuits imposes some outer limits on this process, and I
believe that requiring compensation of lunchtime doffing and
donning would exceed those limits here.
I.
The de minimis doctrine is not in some embryonic state.
Were this a matter of first impression, I would have some hesitation in saying that a de minimis exception qualifies the Fair
Labor Standards Act. The rule has no obvious statutory derivation, and it would be preferable for Congress rather than the
courts to supply its content. For many decades, however, Congress has declined to address the de minimis doctrine and has

Appeal: 09-1917

Document: 68

52

Date Filed: 06/07/2011

Page: 52 of 59

PEREZ v. MOUNTAIRE FARMS

left the courts to develop it essentially as a matter of federal
common law.
Thus we find ourselves bound by a doctrine whose origins
we are not free to question. The Supreme Court and numerous
circuits have adopted the de minimis rule, and I believe a
respect for higher authority and the broad consensus of our
sister circuits obliges us to afford that rule some meaningful
content.
The FLSA de minimis doctrine first appeared in Anderson
v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946). In that case,
the Supreme Court addressed the compensability of the everyday activity of walking to a workstation after punching a time
card. Though the employer paid only for line time, employees
could clock in up to fourteen minutes before their shift began
in order to leave sufficient time for walking. Id. at 683. The
Court concluded that the compensable working time presumptively included "the minimum time necessarily spent in walking at an ordinary rate along the most direct route from time
clock to work bench." Id. at 692. Such walking time was estimated at anywhere from 30 seconds to eight minutes. Id. at
683.
The Supreme Court recognized, however, that compensable
time "must be computed in light of the realities of the industrial world." Id. at 692. As a result, "[w]hen the matter in issue
concerns only a few seconds or minutes of work beyond the
scheduled working hours, such trifles may be disregarded."
Id. The Court ultimately concluded that the "de minimis rule
can doubtless be applied to much of the walking time." Id. It
also noted that the de minimis doctrine would apply to activities that took place at the work bench, including "putting on
aprons and overalls, removing shirts, taping or greasing arms,
putting on finger cots, preparing the equipment for productive
work, turning on switches for lights and machinery, opening
windows and assembling and sharpening tools." Id. at 692-93.
While the Portal-to-Portal Act of 1947 eventually superseded

Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 53 of 59

PEREZ v. MOUNTAIRE FARMS

53

Anderson’s holding that walking on the employer’s premises
and other preliminary and postliminary activities were compensable, see 29 U.S.C. § 254(a), it left undisturbed Anderson’s holding that de minimis periods of work are noncompensable.
The circuit courts have not hesitated to apply the holding
of Anderson to other cases involving small amounts of worktime. See, e.g., Rutti v. Lojack Corp., 596 F.3d 1046, 1057-58
(9th Cir. 2010) (filling out minimal paperwork at home de
minimis); Singh v. City of New York, 524 F.3d 361, 371-72
(2d Cir. 2008) (additional commuting time due to carrying
briefcase de minimis); Alvarez v. IBP, Inc., 339 F.3d 894,
903-04 (9th Cir. 2003) (donning and doffing of hardhats and
safety goggles de minimis); Reich v. IBP, Inc., 38 F.3d 1123,
1126 n.1 (10th Cir. 1994) (same); Aiken v. City of Memphis,
190 F.3d 753, 758 (6th Cir. 1999) (dog-care duties during
handlers’ commute de minimis); Bobo v. United States, 136
F.3d 1465, 1468 (Fed. Cir. 1998) (same); Reich v. New York
City Transit Auth., 45 F.3d 646, 652-53 (2d Cir. 1995)
(same); Lindow v. United States, 738 F.2d 1057, 1063-64 (9th
Cir. 1984) (reviewing log book and clarifying log entries de
minimis); E.I. du Pont De Nemours & Co. v. Harrup, 227
F.2d 133, 136 (4th Cir. 1955) (counting cash before start of
cashier shift de minimis); Frank v. Wilson & Co., 172 F.2d
712, 716 (7th Cir. 1949) (clocking in, receiving instructions
from supervisors, obtaining tools, and walking to work station
all de minimis). Following the lead of Anderson, many of
these de minimis periods involved regular, daily occurrences.
See, e.g., Alvarez, 339 F.3d at 903-04; Reich v. IBP, Inc., 38
F.3d at 1126 n.1.
Given the presence of this standard, and its widespread
adoption, it is obvious that we must strike "a balance between
requiring an employer to pay for activities it requires of its
employees and the need to avoid ‘split-second absurdities’
that ‘are not justified by the actuality of the working conditions.’" Rutti, 596 F.3d at 1057 (quoting Lindow, 738 F.2d at

Appeal: 09-1917

Document: 68

54

Date Filed: 06/07/2011

Page: 54 of 59

PEREZ v. MOUNTAIRE FARMS

1062). On the one hand, to give the de minimis rule too broad
a reach would contradict congressional intent by denying
proper effect to a statute that is "remedial and humanitarian
in purpose." Tenn. Coal, Iron & R. Co. v. Muscoda Local No.
123, 321 U.S. 590, 597 (1944). Congress obviously desired in
the FLSA to protect those whose lives and families depend
upon a decent wage, see 29 U.S.C. § 202(a), and we have recognized this case as one where the humanitarian purpose of
the FLSA must be accorded effect. The jobs performed by the
poultry workers in this case are indisputably important. However, jobs performed in poultry plant production lines can also
be tough, repetitive, and difficult, and the workers here are
undeniably within the core class of employees whose "health,
efficiency, and general well-being" the FLSA was intended to
protect. Id. For these reasons, I am happy to join the court in
concluding that donning and doffing at the beginning and end
of the workday is not de minimis.1
II.
On the other hand, we cannot just toss the de minimis rule
aside. Presumably, the Supreme Court recognized the role of
the de minimis doctrine in FLSA cases for a reason. In Anderson, the Court acknowledged that a de minimis rule is necessary because "[t]he workweek contemplated by [the FLSA]
must be computed in light of the realities of the industrial
world," and those "realities of the industrial world" must
include the commonsense observation that the computations
of ever smaller increments of time may eventually become so
onerous that they should not be the subject of endless litigation. 328 U.S. at 692. At least I can think of no reason for a
1

My good colleagues assert that this Court’s observation in Green v.
Planters Nut & Chocolate Co., 177 F.2d 187 (4th Cir. 1949), that a tenminute period of uncompensated work was de minimis "is merely dicta."
Majority Op. at 45. But because the 10.204 minutes of donning and doffing at the beginning and end of the workday in this case falls outside any
such "ten-minute rule", Green is simply inapposite. There is no need to
address its precedential force, lest we use dicta to overrule asserted dicta.

Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 55 of 59

PEREZ v. MOUNTAIRE FARMS

55

de minimis rule other than preventing companies from being
saddled with ceaselessly litigable computations over just "a
few seconds or minutes."
This case illustrates the litigation difficulties that the de
minimis rule was meant to forestall. In order to resolve a dispute over donning and doffing activities that each take but a
few minutes, the parties were required to hire dueling experts
accompanied by teams of assistants who collectively studied
almost 400 employees. While it is true that "both experts in
the present case were able to measure the amount of time
required by employees to don and doff protective gear,"
Majority Op. at 46, the experts often felt it necessary to carry
their computations out to no fewer than three decimal places.
Indeed, one expert’s analysis required him to scroll frame-byframe through videos of donning and doffing employees in
order to measure their times to within 1/30 of a second. Perez
v. Mountaire Farms, Inc., 610 F. Supp. 2d 499, 507 (D. Md.
2009). Thus the time expended in these activities does present
computational problems as a practical matter. For despite
measurement precision fit for an Olympic race, the dueling
experts came to staggeringly different conclusions. It hardly
seems necessary to state that this sort of dispute serves as a
veritable invitation to extensive litigation.
Absent some de minimis rule, no company could fairly predict its liability for the smallest fragments of time without the
aid of legal counsel, and even then, the presence of factually
uncertain litigation outcomes leaves employers unclear as to
the magnitude of their potential liability. For in cases such as
this one, there seems little practical possibility of consensus
between the parties regarding how much time should be compensated. Here, for example, a large gulf lay between the two
experts’ calculations: whereas the plaintiffs’ expert found that
donning and doffing throughout the day took an average of
20.879 minutes, id. at 509, Mountaire’s expert concluded that
those activities required only 10.2 minutes, id. at 512.

Appeal: 09-1917

Document: 68

56

Date Filed: 06/07/2011

Page: 56 of 59

PEREZ v. MOUNTAIRE FARMS

In our adversary system, calculations such as these are
unlikely ever to be a cut-and-dried matter. Of course courts
can always step in to resolve the gritty details relevant to the
proper computation in any particular case. See, e.g., Alvarez
v. IBP, Inc., 339 F.3d 894, 906 (9th Cir. 2003), aff’d, 546 U.S.
21 (2005) (post-donning walking time compensable); id. (predoffing walking time compensable); Tum v. Barber Foods,
Inc., 360 F.3d 274, 281-82 (1st Cir. 2004), rev’d on other
grounds, Alvarez, 546 U.S. at 41-42 (pre-donning waiting
time not compensable); Majority Op. at 43 ("time spent by the
employees after acquiring their protective gear but before
donning it, and after doffing the gear until fully discarding it,
is compensable"); Tum, 360 F.3d at 283 (same); Majority Op.
at 43 (mean rather than minimum donning and doffing time
compensable); Musch v. Domtar Indus., Inc., 587 F.3d 857,
860-61 (7th Cir. 2009) (post-shift showering not compensable); Gorman v. Consol. Edison Corp., 488 F.3d 586, 593 (2d
Cir. 2007) (security procedures before entering workplace not
compensable); Bonilla v. Baker Concrete Constr., Inc., 487
F.3d 1340, 1344-45 (11th Cir. 2007) (same). But these persistent problems of measurement and demarcation mimic the
heads of the Hydra: cut down one, and two spring up in its
stead. There is simply no quantum of judicial or agency guidance that can convey to companies precisely what small activities are compensable and how many minutes and fractional
seconds should be allotted to them. If the Supreme Court is
prepared to jettison the de minimis doctrine, that is fine. But
so long as it exists, there must be some outer limits on the sort
of granular metrics that have characterized this kind of litigation.
III.
In this case, the lunchtime doffing and donning falls on the
de minimis side of those limits. The substantial differences
between donning and doffing at the beginning and end of the
day on the one hand and doffing and donning at lunch on the
other hand support this conclusion. First of all, the amount of

Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 57 of 59

PEREZ v. MOUNTAIRE FARMS

57

time involved in lunchtime doffing and donning is relatively
minor. The plaintiffs’ expert, on whose study the district court
based its findings, found that doffing at the start of the lunch
break required an average of only 2.571 minutes, and postlunch donning only 4.225 minutes. Perez, 610 F. Supp. 2d at
509. Both are less than half of the time the plaintiffs’ expert
found necessary for doffing and donning at the end and beginning of the day, respectively. Id. While this to be sure is a difference of degree, the de minimis doctrine necessarily
contemplates that such significant differences as this may preclude compensation, for if matters of degree were never significant, there would be no de minimis rule at all.
But even those small figures likely overstate the actual
amount of time involved. Although the plaintiffs’ expert concluded that the total donning and doffing time throughout the
day was 20.879 minutes, the district court found that figure
"to be a slight overestimation of the total time" and reduced
it to 17 minutes. Id. at 524. If the reduction that the district
court applied to the total time collectively applied proportionately to lunchtime doffing and donning individually—and the
district court gave no indication why it should not—then these
lunchtime activities would occupy only 2.093 and 3.440 minutes, respectively, for a total of less than six minutes.
It is true that even such small increments of time can be
aggregated over time to produce an impressive-sounding
number. But the mere fact of multiplication cannot be used to
scrap the de minimis rule altogether. For like the lunchtime
doffing and donning in this case, other daily periods of work
have been found de minimis, see, e.g., Anderson, 328 U.S. at
692-93 (walking to work bench and pre-shift preparations de
minimis); Alvarez, 339 F.3d at 903-04 (donning and doffing
of hardhats and safety goggles de minimis); Reich v. IBP,
Inc., 38 F.3d at 1126 n.1 (same), and there is no number so
small that a suitable multiplier cannot make large.

Appeal: 09-1917

Document: 68

58

Date Filed: 06/07/2011

Page: 58 of 59

PEREZ v. MOUNTAIRE FARMS

Lunchtime doffing and donning also differs from its
beginning- and end-of-day counterpart because the former is
incident to a bona fide meal period, which is specifically
exempted from compensation by a regulation that itself breaks
up the continuous workday. See 29 C.F.R. § 785.19 ("Bona
fide meal periods are not worktime."). Given the combination
of brevity and the bracketing of a non-compensable meal
break, doffing and donning time before and after lunch cannot
be of compensable character.2 Striking the balance in this way
has the advantages of following the standards laid down by
the Supreme Court, of respecting our own circuit precedent,
and of recognizing that in this difficult doctrinal area, the
arguments put forth by the employees and Mountaire each
have their points of merit.
IV.
I admit to some discomfort applying any sort of balancing
act where the Fair Labor Standards Act does not appear to
provide one. However, I believe that the de minimis standard
articulated by the Supreme Court in Anderson requires it. And
if one is to undertake in this case the sort of de minimis
inquiry mandated by Anderson and the decisions of our own
and sister circuits, it cannot lead to some stark all-or-nothing
disposition in favor of either management or labor.
2

Sepulveda did not dispute that employees’ entitlement to compensation
under the FLSA is frequently a factual issue, see Roy v. County of Lexington, 141 F.3d 533, 545 (4th Cir. 1998), but instead recognized that in the
circumstances of the Sepulveda case, judgment as a matter of law was
appropriate. 591 F.3d at 217 n.4; see also Alvarez, 339 F.3d at 903 ("The
time it takes to [don and doff] non-unique protective gear is de minimis
as a matter of law."); Reich v. IBP, Inc., 38 F.3d at 1126 n.1 ("the time
spent putting on and taking off [non-unique gear] is de minimis as a matter
of law"). This is not inconsistent with Roy, for the fact that some issues
are tried under Fed. R. Civ. P. 52 does not render Fed. R. Civ. P. 56 universally inapplicable. Roy did not even involve application of the de
minimis doctrine, the very point at issue here.

Appeal: 09-1917

Document: 68

Date Filed: 06/07/2011

Page: 59 of 59

PEREZ v. MOUNTAIRE FARMS

59

The best way to recognize that fact is indeed the way the
majority has recognized it—to credit on the one hand the
donning and doffing at the beginning and end of the workday,
and on the other hand to avoid making the lesser lunch-break
doffing and donning a matter of perpetual litigation. I concede
that my approach herein provides no cleaner analytical line
than does the loose three-factor Lindow formulation. The
caselaw in this area is itself a mush, albeit one that redeemably recognizes the need to compensate workers fairly for
work performed without driving companies crazy with microscopic litigation. Once in a good while outcomes that are analytically impure may be eminently just. The de minimis
doctrine requires the courts to travel that road, and I believe
that my distinguished colleagues and I have reached, through
perhaps distinctive routes, the proper destination.