The Seventh Circuit noted that the Collective bargaining agreement between the union and JCG did not require that half-hour lunch period be compensated, and record showed that instant lunch break was “bona fide” so that JCG was not required to pay plaintiffs for any time taken during lunch period, including time taken to remove and put on protective clothing.
More interesting, however, is the Seventh Circuit finding that the District Court did not err in finding that actual time used to remove and put on protective clothing was minimal so as to leave issue of compensation for such time to terms of collective bargaining agreement.
This is interesting because Judge Posner did not merely opine on how long the donning and doffing takes. (The employees testified that it takes 10 to 15 minutes, while JCG said that it takes only 2 to 3 minutes.) Instead of relying on the evidence presented to the District Court, Posner identified the clothing/equipment that JCG’s plants use and purchased it. Three members of the court’s staff then donned/doffed it as if they were workers at the plant, videotaped the donning/doffing, and timed it. The results were approximately 110 seconds to remove and put on that equipment.
This standard was not consistent with our appellate process to consider the evidence presented to the lower courts.
Furthermore, if this experiment is extended to juries or other judges, there would be no stoping them from conducting secret experiments. The flaws of the experiment would never be known, never be subject to question or challenge, and yet will dictate the outcome.