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Posner cites in-chambers donning and doffing experiment; dissenter is 'startled, to say the least'

An appellate opinion (PDF) by Judge Richard Posner relates how the court’s own experiment rebuffed suggestions that poultry processing workers needed as long as 15 minutes to change into and out of required clothing for their jobs.

Dissenting Judge Diane Wood said she was “startled, to say the least,” to learn of the in-chambers experiment.

Wisconsin Appellate Law and Josh Blackman’s Blog have coverage of the videotaped experiment, dubbed an “Article III fashion show” in the critical blog post by Blackman, an assistant law professor at South Texas College of Law. The Appellate Daily had an early report of the opinion on Twitter.

The workers claimed violations of overtime laws because they were not compensated for the time it took to doff and don their work gear during lunch breaks. The workers said it takes 10 to 15 minutes of their lunch break to change out of and back into the clothing and protective gear; the company said it takes only two or three minutes. Posner noted the differing accounts and said the federal judge did not express an opinion on the question.

“How would a judge or jury know who was telling the truth?” Posner wrote. “The plaintiffs could be filmed changing, but their incentive would be to dawdle; the company could doubtless find a few speed demons among the workers. The limitations of the trial process as a method of finding certain types of fact must be recognized.

“One of us decided to experiment with a novel approach,” Posner continued. “It involved first identifying the clothing/equipment that the defendant’s plants use and buying it (it is inexpensive) from the supplier. Upon arrival of the clothing/equipment three members of the court’s staff donned/doffed it as they would do if they were workers at the plant. Their endeavors were videotaped. The videotape automatically recorded the time consumed in donning and doffing and also enabled verification that the ‘workers’ were neither rushing nor dawdling.”

It took an average of 110 seconds for the clerks to remove the clothing and put it back on. “This was not ‘evidence’—the intention was to satisfy curiosity rather than to engage in appellate fact-finding—but it is information that confirms the commonsense intuition that donning and doffing a few simple pieces of clothing and equipment do not eat up half the lunch break,” Posner said.

Since the poultry workers don’t spend the vast majority of their lunch break changing clothes, the matter of compensation is left to union negotiations, Posner said.

In a dissent, Judge Diane Wood argues that her colleagues have “gone beyond the proper appellate role” and the case should be remanded for a determination of how much time the donning and doffing actually takes. She said the majority failed to account for the time it takes for the workers to move to an isolated area to put on sanitary equipment, and for the time that workers assert they need to wash and stow their equipment.

“I am startled, to say the least, to think that an appellate court would resolve such a dispute based on a post-argument experiment conducted in chambers by a judge,” Wood wrote.

Hat tip to How Appealing.