Lutz V Froedtert Health Inc
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
NICHOLE LUTZ,
on behalf of herself and all others similarly situated,
Plaintiff,
v. Case No. 23-CV-974
FROEDTERT HEALTH INC.,
Defendant.
DECISION AND ORDER
INTRODUCTION
Plaintiff Nichole Lutz brought this action against defendant Froedtert Health Inc.,
alleging violations of the Fair Labor Standards Act (FLSA) and Wisconsin’s Wage
Payment and Collection Laws (WPCL). (2d Am. Compl., ECF No. 130.) The court certified
two classes related to Lutz’s claims for overtime compensation. (ECF No. 123.) Lutz also
alleged two individual claims related to her on-call pay and meal period compensation.
(ECF No. 130, ¶¶ 56, 63, 74.)
The parties each filed motions for partial summary judgment. (ECF Nos. 132, 136.)
Lutz argues that no genuine dispute of material fact exists as to whether the defendants
violated federal and state labor law with respect to the two class-wide claims and with
respect to her claim for on-call related overtime compensation. (ECF No. 143 at 1–4.)
Froedtert contends that judgment should be entered in its favor as a matter of law with
respect to the two class-wide claims and with respect to Lutz’s individual claim for meal
period compensation. (ECF No. 142 at 4–5.)
All parties have consented to the full jurisdiction of a magistrate judge. (ECF
Nos. 9, 10). The court has jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1367(a). The
parties’ motions have been fully briefed and are ready for resolution.
FACTS
The court certified two classes in this action. The first subclass is defined as, “All
hourly, non-exempt employees employed by Froedtert who, for the time period after
November 7, 2021, to the present, during any workweek worked over 40 hours and
received overtime pay at a rate lower than time and a half the regular rate earned for the
workweek.” (ECF No. 123 at 2.) The second subclass is defined as:
All hourly, non-exempt employees employed by Froedtert who, for the
time period after November 7, 2021, to the present, during any workweek
worked over 40 hours and also received pay for working on a holiday, in
that same workweek, that was computed at an hourly rate lower than time
and a half the regular rate earned that same workweek.
(Id.)
The parties agree that Froedtert employees become eligible to receive an increase
to their hourly rate of pay—known as a shift differential—for second or third shift if a
majority of the shift occurs during second shift hours that start at 3 p.m. or if a majority
of the shift occurs during third shift hours that start at 11 p.m. (ECF No. 149, ¶ 16.)
Froedtert employees become eligible to receive weekend differential pay for working on
weekends. (Id., ¶ 17.) Froedtert also operates an “Extra Pay” program which increases the
normal hourly rate of pay for designated hours or shifts to incentivize certain critical
employees to work additional hours or pick up extra shifts and enable operations to
continue. (ECF No. 152, ¶ 74.)
To calculate the “regular rate” used for overtime compensation, Froedtert
included its employees’ shift and weekend differentials, as well as units of extra pay. (See
ECF Nos. 143 at 5; 148 at 8.) At least for the relevant time period, Froedtert’s payroll
system excluded all holiday pay premiums from the computation of the “regular rate”
used for overtime purposes. (ECF No. 149, ¶ 31.)
Lutz worked in Froedtert’s Sterile Processing Department from October 2020 until
August 2023. (ECF No. 145, ¶¶ 7–8.) Within the Sterile Processing Department, Lutz
worked on the Clinic Team from February 2022 to April 2023. (Id., ¶¶ 24, 27.) While on
the Clinic Team, Lutz wore a Vocera device, which operates like a walkie-talkie. (Id.,
¶¶ 25–27, 36.) The Vocera device did not work when Lutz was off of Froedtert’s premises.
(Id., ¶ 37.)
Lutz took her meal breaks in Froedtert’s public cafeteria. (ECF No. 152, ¶ 22.) She
answered her Vocera during meal breaks, except for occasions when she removed the
batteries from the Vocera. (ECF No. 145, ¶¶ 44, 48.) Froedtert did not maintain a written
record of when employees took meal breaks during Lutz’s stint in the Sterile Processing
Department. 1 (Id., ¶ 63.)
SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). A fact is “material” only if it “might affect the outcome of
the suit” and a dispute is “genuine” only if a reasonable factfinder could return a verdict
for the non-movant. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). “The ordinary
standards for summary judgment remain unchanged on cross-motions for summary
judgment: a court construes facts and inferences arising from them in favor of the party
against whom the motion under consideration is made.” Cook v. Greenwood Hosp. Mgmt.,
LLC, 704 F. Supp. 3d 874, 877 (E.D. Wis. 2023) (citing Blow v. Bijora, Inc., 855 F.3d 793, 797
(7th Cir. 2017)). “The controlling question is whether a reasonable trier of fact could find
in favor of the non-moving party on the evidence submitted in support of and [in]
opposition to the motion for summary judgment.” White v. City of Chi., 829 F.3d 837, 841
(7th Cir. 2016).
1 Lutz also worked for Froedtert in various capacities before and after the relevant timeframe. (ECF No. 145,
¶¶ 4–11.)
ANALYSIS
I. Class Claims: Overtime Computation
The FLSA and Wisconsin’s wage and hour laws mandate that employers pay
employees an overtime rate of one and one-half times their regular rate of pay for all
hours worked in excess of forty hours in a workweek. 29 U.S.C. § 207(a)(1) (“[N]o
employer shall employ any of his employees who in any workweek is engaged in
commerce or in the production of goods for commerce…for a workweek longer than forty
hours unless such employee receives compensation for his employment in excess of the
hours above specified at a rate not less than one and one-half times the regular rate at
which he is employed.”); Wis. Admin. Code § DWD 274.03 (“[E]ach employer subject to
this chapter shall pay to each employee time and one-half the regular rate of pay for all
hours worked in excess of 40 hours per week.”).
In moving for summary judgment on her two class-wide claims Lutz argues that
Froedtert: (1) improperly totaled weekly compensation when overtime was involved, and
(2) improperly calculated the overtime rate when employees worked overtime during a
week they also worked on a holiday. (ECF No. 143 at 9, 16.) Froedtert contends that Lutz’s
class-wide claims fail because: (1) her challenge to the way in which overtime was
calculated is contradicted by the Department of Labor (DOL) regulation on overtime (29
C.F.R. § 778.110(b)), the DOL’s Fact Sheet #56C,2 and the DOL’s online overtime
2 Available at https://www.dol.gov/agencies/whd/fact-sheets/56c-bonuses.
calculator,3 and (2) her holiday overtime challenge is contradicted by the DOL’s
regulation on “special days” (29 C.F.R. § 778.203(b)) and the DOL’s Field Operations
Handbook. (ECF No. 142 at 5.) 4
A.1. Subclass One: Computation Method under Federal Law
The FLSA defines “regular rate” as “all remuneration for employment paid to, or
on behalf of, the employee,” subject to certain enumerated exemptions. 29 U.S.C. § 207(e).
Setting aside holidays, the parties agree that Froedtert correctly calculated the employees’
“regular rate” by dividing each employee’s total weekly compensation (including extra
pay and shift and weekend differentials) by the number of hours worked. (See ECF
Nos. 143 at 5; 148 at 8.); see also 29 C.F.R. § 778.109 (“The regular hourly rate of pay of an
employee is determined by dividing his total remuneration for employment (except
statutory exclusions) in any workweek by the total number of hours actually worked by
him in that workweek for which such compensation was paid.”). After determining the
regular rate of pay, Froedtert multiplied the number of hours worked over forty by one-
half the “regular rate” to determine the overtime premium an employee should receive
in addition to the total weekly compensation earned. (See ECF No. 148 at 13–19.)
Lutz alleges that Froedtert relied on administrative guidance that is inconsistent
with the FLSA’s requirement that overtime pay must equal one and one-half times the
3 Available at https://webapps.dol.gov/elaws/otcalculator.htm.
4 Citations in this decision are to the page numbers provided by ECF, not the page numbers listed at the
bottom of the parties’ filings.
“regular rate.” (ECF No. 144 at 4–5 (citing 29 U.S.C. § 207(a)(1)).) Lutz characterizes
Froedtert’s approach as a “hybrid” method that improperly “credits” the shift and
weekend differentials earned during the first forty hours worked in a week toward the
required overtime compensation. (ECF No. 143 at 10.) Lutz argues that Froedtert should
identify the total amount an employee actually earned during the first forty hours each
week (including any extra pay or shift and weekend differentials, regardless of whether
that amount is more or less than forty times the “regular rate”) and then add one and one-
half times the “regular rate” for each overtime hour worked. (Id.)
To illustrate, suppose an individual works shifts carrying a higher hourly rate in
the first forty hours in a week than she earns in each additional hour. For example,
assume the employee earns a $30 per hour for each of the first forty hours in a week
($1,200) and $15 for each of ten hours subsequently worked that week ($150), for total
compensation of $1,350. The employee’s “regular rate” would be $27 ($1,350 divided by
fifty hours). Applying Froedtert’s method for computing overtime compensation, the
employee would receive her total compensation of $1,350 plus an overtime premium of
$135 (one-half of $27 times 10 overtime hours) for a total of $1,485. Under Lutz’s
approach, the employee would receive $1,200 (what she earned during her first forty
hours) plus $405 ($27 “regular rate” multiplied by 1.5, multiplied by ten overtime hours)
for a total of $1,605.
For comparison, consider an employee who works shifts carrying a lower hourly
rate in the first forty hours in a week than she earns in each additional hour. For example,
assume she earns $25 per hour for each of the first forty hours ($1,000) and $35 for each
of ten additional hours worked that week ($350), resulting in the same total compensation
of $1,350. The employee’s “regular rate” would still be $27 ($1,350 divided by fifty hours).
Applying Froedtert’s method for calculating overtime compensation, the employee
would receive total compensation of $1,350 plus an overtime premium of $135 (one-half
of $27 times 10 overtime hours) for the same total of $1,485. Under Lutz’s approach, the
employee would receive $1,000 (what she earned for the first forty hours) plus $405 ($27
“regular rate” multiplied by 1.5, multiplied by ten overtime hours) for a total of $1,405.
As illustrated, Froedtert’s approach results in the same total compensation
(including overtime premiums) regardless of when the employee works higher paying
shifts each week. Froedtert’s calculation is consistent with guidance from the Department
of Labor, as illustrated by Example B from the agency’s Fact Sheet #56C. See “Fact Sheet
#56C: Bonuses under the Fair Labor Standards Act (FLSA),” U.S. Dep’t of Labor, available
at https://www.dol.gov/agencies/whd/fact-sheets/56c-bonuses. Alternatively, Lutz’s
method variably results in higher or lower totals depending on the timing of shifts
carrying extra pay. Accordingly, Lutz’s approach would benefit employees who work
higher paying shifts during the first forty hours (because it would drive up the “regular
rate” that would be multiplied by the overtime hours).
The illustration of chronological impacts reveals the heart of the parties’ conflict.
Turning to the applicable law, Lutz relies on 29 U.S.C. § 207(h)(2), which authorizes
employers to “credit” certain extra compensation—as described in paragraphs (5), (6),
and (7) of subsection 207(e)—toward the required overtime compensation. (ECF No. 143
at 16.) The parties agree that the extra pay in question does not qualify under paragraphs
(5), (6), and (7) of subsection 207(e). (Id. at 12; ECF No. 148 at 10.) Because the extra pay
falls outside these categories, Lutz argues that Froedtert impermissibly “credits” it
against the overtime owed by keeping those amounts figured into the one and one-half
times calculation. (ECF No. 143 at 16.)
Lutz cites the Seventh Circuit’s decision in Howard v. City of Springfield, 274 F.3d
1141, 1147 (7th Cir. 2001). (ECF No. 154 at 5.) In Howard, the court found certain extra pay
did not fall within § 207(e)(7) as had been alleged and, therefore, could not be used to
offset overtime liability pursuant to § 207(h)(2). 274 F.3d at 1147. Importantly, the court
determined that the extra pay could be not used to “credit” or “offset” the overtime owed
because extra pay under § 207(e)(7) is excluded from calculation of the “regular rate” and
only then becomes “creditable” toward overtime compensation owed. See id.; 29 U.S.C.
§ 207(e)(7), (h)(2).
Lutz uses the term “credit” differently. She suggests that earnings are “credited”
against overtime liability by their blended overall incorporation into the “one and one-
half” times calculation of the “regular rate.” (ECF No. 154 at 5.) But the statute explicitly
defines “regular rate” to include “all remuneration for employment paid to, or on behalf
of, the employee,” subject to certain enumerated exemptions that the parties agree do not
apply to this claim. See 29 U.S.C. § 207(e); ECF Nos. 143 at 12, 148 at 10.
Although the Seventh Circuit has not had occasion to opine on this issue, the Tenth
Circuit Court of Appeals has upheld the DOL-prescribed methodology, including the
employer’s use of the one-half multiplier for each overtime hour worked. Chavez v. City
of Albuquerque, 630 F.3d 1300, 1312–13 (10th Cir. 2011). The Chavez court observed that,
“[a]bsent evidence of an intent to manipulate compensation to avoid FLSA liability, this
result does not violate the FLSA.” 630 F.3d at 1312–13.
At least two federal district courts have also struck down challenges like Lutz’s. In
Delpin Aponte v. United States, 116 Fed. Cl. 5 (2014), aff’d, 620 F. App’x 960 (Fed. Cir. 2015),
the court found that the employer properly followed DOL regulations, “which merely
require adding one-half times the regular rate of pay for the number of overtime hours
worked in a week, once the regular rate has been accurately calculated.” 116 Fed. Cl. at
21 (citing 29 C.F.R. §§ 778.110(b), 778.111, 778.112, 778.118, 778.311, 778.313(b)). The court
further observed that this method was consistent with the FLSA’s “aggregate” approach,
“which bases overtime pay not on the rate at which an hour would otherwise have been
paid were it not overtime, but instead employs an average rate for purposes of this pay,
and allows compensation associated with non-overtime hours to satisfy overtime pay
requirements.” Id. (citing 29 U.S.C. § 207(a), (e), (h)).
In Urbani v. Wellesley College, No. 13-CV-11768-ADB, 2016 WL 6571247, at *10, 2016
U.S. Dist. LEXIS 185633, at *30–31 (D. Mass. Jan. 12, 2016), the court similarly determined
that, “for purposes of FLSA overtime compensation, an employee’s ‘regular rate’ is
not…always equivalent to the rate at which he or she is paid for his regularly-assigned
shifts.”
Consistent with the foregoing, this court interprets the FLSA as requiring
employers to pay at least one and one-half times of what amounts to a blended average.
See 29 U.S.C. § 207(a)(1), (e) (defining “regular rate” to include “all” remuneration subject
to certain enumerated (and presently irrelevant) exemptions). Because the “regular rate”
is an aggregated amount that already accounts for additional pay like shift and weekend
differentials, removing that extra pay in the addition process (as Lutz suggests) would
result in over-and under-counting of those differentials. (See supra at 7–8 (court’s
hypothetical accounting comparison).) If Lutz wants Froedtert to separately account for
the overtime hours based solely on the differential-adjusted rates earned during overtime
hours, then § 207(g)(2) would permit that accounting, but the parties must reach an
agreement or understanding before performing the work. See 29 U.S.C. § 207(g). The
parties have not entered into such an agreement. (See ECF Nos. 143 at 10–11; 148 at 12.)
This challenge boils down to fundamentally different applications of the term
“credit.” The FLSA authorizes “crediting” certain extra pay toward the overtime
obligation when that extra pay is statutorily excluded from the calculation of the regular
rate. See 29 U.S.C. §§ 207(e), (h). Lutz characterizes the inclusion of other types of extra
pay into the one and one-half calculation as “crediting” even when that extra pay is
statutorily required to be included in the “regular rate.” (ECF No. 143 at 9.) Because the
FLSA permits the type of “crediting” Lutz challenges, the court concludes that Froedtert
is entitled to judgment as a matter of law, under federal law, with respect to the class-
wide overtime computation claim.
A.2. Subclass One: Computation Method under State Law
As for Lutz’s WPCL claim, the WPCL does not explain how to calculate the
“regular rate.” See generally Wis. Admin. Code § DWD 274. Nor does the WPCL contain
any language parallel to the FLSA’s section on crediting excluded categories of pay
toward overtime compensation. Compare Wis. Admin. Code § DWD 274, with 29 U.S.C.
§ 207(h)(2). Froedtert asserts that the court’s interpretation of the WPCL should match its
interpretation of the FLSA with respect to the regular rate calculation for overtime
compensation. (ECF No. 148 at 27.) Lutz contends that the omissions make her claim even
stronger under state law. (ECF No. 143 at 25.)
When “the Wisconsin administrative regulations at issue…are substantially
similar to federal regulations, federal cases may assist in [the] analysis.” United Food &
Com. Workers Union, Loc. 1473 v. Hormel Foods Corp., 876 N.W.2d 99, 109 (Wis. 2016)
(citations omitted); see also Luckett v. Bodner, 769 N.W.2d 504, 511 (Wis. 2009) (“When ‘a
state rule mirrors the federal rule, [the state courts] consider federal cases interpreting the
rule to be persuasive authority.’”) (quoting State v. Evans, 617 N.W.2d 220, 222 n.2 (Wis.
Ct. App. 2000)). Here, the state regulation’s use of the term “regular rate” tracks the
language used in the FLSA and DOL regulations. Compare Wis. Admin. Code § DWD
274.03, with 29 U.S.C. § 207(e).
Lutz does not provide any persuasive authority to support a different approach.
She argues that the lack of language permitting crediting in the WPCL means that “no
credits are permitted.” (ECF No. 143 at 3.) As previously explained, Lutz employs a
different application of the term “credit.” Therefore, the lack of state law parallel to
§ 207(h)(2) is immaterial. Lutz insists that employees must receive the full (differential-
included) amount of wages earned during the first forty hours, plus one and one-half
times the “regular rate.” (Id. at 25.) Paradoxically, Lutz does not contend that differential
pay should be excluded from the calculation of the “regular rate” under state law. (Id.)
The court ponders why an employer would use the federal definition of “regular rate”—
potentially driving up the “regular rate” by inclusion of differential pay—only to exclude
the differentials from the total summation and effectively overcount that extra pay. Under
state law, Lutz appears even more clearly to want to have her cake and eat it, too.
Accordingly, Froedtert is also entitled to judgment as a matter of law with respect
to the class-wide WPCL overtime computation claim.
B.1. Subclass Two: Holiday Hours under Federal Law
As explained above, the “regular rate” under the FLSA includes all remuneration
for employment, subject to certain enumerated exemptions identified in 29 U.S.C.
§§ 207(e)(1)–(8). Relying on the “special days” exemption under § 207(e)(6), Froedtert
excluded extra compensation it paid for work on holidays when calculating the “regular
rate” for overtime purposes. (ECF No. 142 at 19.) Lutz argues that the extra compensation
in question did not qualify for the § 207(e)(6) exemption. (ECF No. 143 at 2.)
To qualify for this exemption, the extra compensation must be “paid for work…on
Saturdays, Sundays, holidays, or regular days of rest, or on the sixth or seventh day of
the workweek, where such premium rate is not less than one and one-half times the rate
established in good faith for like work performed in nonovertime hours on other days.”
29 U.S.C. § 207(e)(6). When determining “the rate established in good faith for like work
performed in nonovertime hours on other days,” the corresponding DOL regulation
distinguishes between two different categories of employees. 29 C.F.R. § 778.203(a). On
the one hand, “[w]here an employee is hired on the basis of a salary for a fixed workweek
or at a single hourly rate of pay, the rate paid for work on ‘special days’ must be at least
time and one-half his regular hourly rate in order to qualify under section 7(e)(6).” 29
C.F.R. § 778.203(a). Alternatively, for an employee who “is a pieceworker or…works at
more than one job for which different hourly or piece rates have been established,” the
extra compensation will qualify for the exemption if it is “one and one-half times either
(1) the bona fide rate applicable to the type of job the employee performs on the ‘special
days’, or (2) the average hourly earnings in the week in question.” 29 C.F.R. § 778.203(a).
Lutz contends that she and the other class members fall into the first category for
employees who work at a single hourly rate of pay. (ECF No. 143 at 18–20.) She points to
a sample week for class member Laura Arena, who received a base rate of pay plus a shift
premium, as well as weekend differentials and units of extra pay.5 (Id. at 6.) Lutz argues
that Arena did not work different jobs even though she ultimately earned different rates
during different workdays. (Id. at 17–18.) In advocating for treatment in the first DOL
category, Lutz further contends that this category calls for one and one-half times the
“regular rate” as calculated on the weekly basis described in the first claim. (Id. at 19.)
But calculating the “regular rate” would not be necessary for first-category
employees who earn a single hourly rate of pay because the relevant rate would simply
be that singular rate. On the contrary, the concept of the “regular rate” is baked into the
second DOL category (for employees who earn different rates for different jobs), which
provides that the extra pay in question may qualify for exemption if it is one and one-half
times the “average hourly earnings in the week in question.” The difference in
language—”average hourly earnings” instead of “regular rate”—is necessary because it
would make little sense to calculate the “regular rate” before determining whether a
5 Froedtert argues that Arena also received holiday premium pay during the week in question. (ECF
No. 149 at ¶ 23.)
certain amount should be excluded from the “regular rate.” Ultimately, this comparison
reveals the logical reason that employees like the class members should be treated as
employees who work different jobs for different rates.
Lutz offers Arena’s sample week of November 17 to 23, 2023, in which Arena
received a base rate of $32.24 per hour plus a shift premium of $3 per hour, as well as
extra pay and weekend differential. (ECF No. 143 at 6.) In this example, Arena’s rate
applicable to the job she performed on the special day was $35.24 ($32.24 base rate plus
the $3 shift premium) because the holiday in question was Thanksgiving and would not
have been subject to the weekend differential. Because this rate satisfies federal minimum
wage standards and Lutz does not argue that Froedtert failed to establish it in good faith,
this rate also constituted Arena’s “bona fide” base rate. See 29 C.F.R. § 778.203(b). Lutz
acknowledges that Arena received just over $62 per hour on the holiday. (ECF No. 143 at
6, 19.) That effective hourly rate is greater than one and one-half times Arena’s bona fide
rate that she would have been paid had it not been a holiday ($35.24 bona fide rate
multiplied by 1.5 equals $52.86). Accordingly, the extra pay in question qualifies for
“regular rate” exemption for employees who earn different rates. See 29 C.F.R.
§ 778.203(a).
Froedtert also offers the example of Lutz’s pay from the week of November 26 to
December 2, 2021. (ECF No. 142 at 20.) During that week, Lutz earned an hourly rate of
$18.34. (ECF No. 145, ¶ 66.) Lutz was paid for ten hours of work on the day after
Thanksgiving, which Froedtert deems a holiday, and did not earn any shift or other
differential pay. (Id., ¶¶ 66–67.) Lutz received holiday premium pay, resulting in total
daily compensation of $288.15, or approximately $28.82 per hour. (Id., ¶ 67.) That rate is
more than one and one-half times Lutz’s bona fide base rate ($18.34 times 1.5 equals
$27.51). Therefore, Froedtert paid Lutz at least one and one-half times the bona fide rate
applicable to her job that she would have been paid had it not been a holiday. See 29
C.F.R. § 778.203(a).
Lutz puts the cart before the horse by calculating the “regular rate” before
determining whether holiday pay should be excluded from the “regular rate”
computation. (See ECF No. 143 at 19.) Because the holiday pay in question qualifies for
exclusion from the “regular rate” calculation under § 207(e)(6), Froedtert is entitled to
judgment as a matter of law under federal law with respect to subclass two’s claim for
overtime compensation.
B.2. Subclass Two: Holiday Hours under State Law
As for the state law claim,6 Wisconsin’s wage and hour laws do not include a
provision equivalent to § 207(e)(6) that allows an employer to treat holiday premiums
like overtime premiums that can be excluded from the “regular rate.” Thus, Lutz argues
6 Lutz did not plead the holiday-related overtime claim under Wisconsin law in the operative complaint.
See ECF No. 130. However, Lutz asserts that a plaintiff can change legal theories without amending the
complaint (ECF No. 142 at 28) and Froedtert does not contest this request (ECF No. 148).
that Wisconsin law requires employers to include holiday premiums in computing the
“regular rate.” (ECF No. 143 at 27.)
As addressed with respect to the first class-wide claim, Wisconsin law does not
define the “regular rate” at all. See Wis. Stat. § 103.02 (directing the Department of
Workforce Development (DWD) to classify periods of time “to be paid for at the rate of
at least one and one-half times the regular rates”); Wis. Admin. Code § DWD 274.03
(requiring affected employers to “pay each employee time and one-half the regular rate
of pay for all hours worked in excess of 40 hours per week.”).
Lutz contends that the court should interpret state law to follow the federal
definition of “regular rate” by calculating the “regular rate” based on “all” remuneration
but should not subject the calculation to the federally enumerated exceptions (or at least
the holiday provision under § 207(e)(6)). (ECF No. 143 at 27.) Froedtert argues that the
court should apply the full federal definition expressed in 29 U.S.C. § 207(e) (including
the holiday exception) because the state overtime law regarding time and one-half
compensation was implemented after, and mirrors, the federal statute. (ECF No. 152 at
12–13.)
Although Wisconsin has not promulgated any related regulations, the DWD
maintains a webpage for frequently asked questions about overtime. See “Hours of Work
and Overtime Frequently Asked Questions,” Wis. Dep’t of Workforce Dev., available at
https://dwd.wisconsin.gov/er/laborstandards/overtimefaq.htm. This webpage offers a
definition of “regular rate of pay” and a sample calculation that are consistent with the
FLSA, except that the definition does not mention any holiday premium or other “regular
rate” exemptions. See id. Having said that, this webpage has no authoritative effect
because “it is neither an exercise in notice-and-comment rulemaking nor the outcome of
administrative adjudication.” See Van Straaten v. Shell Oil Prods. Co. LLC, 678 F.3d 486, 488
(7th Cir. 2012).
Turning back to the state law itself, “‘[s]tatutory interpretation begins with—and,
absent ambiguity, is confined to—the language of the statute,’ and statutory words and
phrases, unless technical in nature or carrying a peculiar legal meaning, are construed
according to common and ordinary usage.” Paczkowski v. My Choice Fam. Care, Inc., 384 F.
Supp. 3d 991, 993 (W.D. Wis. 2019) (citing Fuchsgruber v. Custom Accessories, Inc., 628
N.W.2d 833 (Wis. 2001); Peterson v. Midwest Sec. Ins. Co., 636 N.W. 2d 727 (Wis. 2001)).
“[S]tatutory language is interpreted in the context in which it is used; not in isolation but
as part of a whole; in relation to the language of surrounding or closely-related statutes;
and reasonably, to avoid absurd or unreasonable results.” Id. (citing State ex rel. Kalal v.
Circuit Court for Dane Cty., 681 N.W.2d 110, 124 (Wis. 2004)).
The common and ordinary meaning of “regular rate” in the overtime context is
that amount which an employer typically pays for each hour worked. The term “regular”
implies that other, special rates may exist. Because Froedtert provides extra compensation
for a variety of reasons, the distinction between “regular” and “special” rates is not self-
evident. However, the statutory context extends to “the terms’ usage in relation to the
language of closely related statutes and how the court had interpreted those terms prior
to the legislature enacting the statute in question.” United Am., LLC v. Wisconsin Dep’t of
Transportation, 959 N.W.2d 317, 320 (Wis. 2021) (internal citations omitted). The FLSA is
a closely related statute enacted decades before Wisconsin promulgated its overtime
regulation. Compare Fair Labor Standards Act of 1938, Pub. L. No. 676-718, § 7, 52 Stat.
1060, 1063 (1938), with 255B Wis. Admin. Reg. (April 1, 1977). Congress added the
definition of “regular rate” and the enumerated exemptions to its calculation (including
for holiday premium pay) in 1949. See Fair Labor Standards Amendments of 1949, Pub.
L. No. 736-393, § 7(d), 63 Stat. 910, 913–914 (1949). No reasonable litigant can argue that
Wisconsin lawmakers were not aware of the term’s federal meaning when they elected to
use the term “regular rate” without further definition.
Lutz’s position is also belied by the fact that neither federal nor state law requires
employers to pay additional compensation for work performed on holidays. Obviously,
the FLSA’s exemption of holiday premium pay from the “regular rate” calculation
reduces employees’ financial incentive to work overtime during weeks they also work on
a holiday. Ultimately, employers and employees are left to evaluate these consequences
and negotiate accordingly. After all, overtime laws construct a floor and not a ceiling.
Because the ordinary meaning of “regular rate” is informed by the federal statutory
context, the court does not find it appropriate to slice and dice the definition according to
Lutz’s whim.
Froedtert is entitled to judgment as a matter of Wisconsin law with respect to
subclass two’s claim for holiday-related overtime compensation.
II. Individual Claims: On-Call Hours and Meal Periods
In addition to the class-wide claims, Lutz asserts two individual claims, alleging
(1) that Froedtert should have included on-call pay in the “regular rate” calculation for
overtime (ECF No. 130, ¶ 56), and (2) that all her meal breaks were compensable because
she was not free to leave the premises (Id., ¶ 74), and even if not, that certain meal breaks
were compensable because work responsibilities interrupted the breaks (Id., ¶ 63). Lutz
moved for summary judgment only with respect to the on-call pay (ECF No. 143 at 1–4),
while Froedtert moved for summary judgment only with respect to the mealtime
compensability. (ECF No. 142 at 20.)
A. On-Call Hours
Froedtert does not contest liability on Lutz’s individual on-call pay claim. (ECF
No. 148 at 30.) Froedtert acknowledges that payroll records reflect Lutz received on-call
pay during weeks that she worked more than forty hours. (ECF No. 142 at 24.) However,
Froedtert contends that damages cannot be determined at this time because Lutz testified
she was not aware if she worked on-call during the applicable limitations period and, if
she did, whether she worked overtime during that same period. (ECF No. 148 at 30.) Lutz
does not contest Froedtert’s position. (ECF No. 154 at 16.)
Because the parties have not provided further briefing on the issue of damages,
the court makes the limited finding that judgment as a matter of law is appropriate with
respect to Froedtert’s liability for on-call pay during overtime weeks, subject to Lutz
establishing she suffered damages during the relevant period.
B. Meal Periods
As for mealtime compensability, the FLSA and Wisconsin’s wage-and-hour law
require that employees be compensated for meal periods if the employee is not
completely relieved from all work duties. 29 C.F.R. § 785.19(a) (“Bona fide meal periods
are not worktime.…The employee must be completely relieved from duty for the
purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a
bona fide meal period.…The employee is not relieved if he is required to perform any
duties, whether active or inactive, while eating.”); Wis. Adm. Code § DWD 274.02(3)
(“The employer shall pay all employees for on-duty meal periods, which are to be
counted as work time. An on-duty meal period is a meal period where the employer does
not provide at least 30 minutes free from work.”). Although federal regulations specify
that bona fide meal periods do not require the ability to leave the premises (29 C.F.R.
§ 785.19(b)), Wisconsin law provides that “[a]ny meal period where the employee is not
free to leave the premises of the employer will also be considered an on-duty meal
period.” Wis. Adm. Code § DWD 274.02(3).
1. Ability to Leave during Meal Periods
According to Lutz, her manager told her in the fall of 2020 that she could not leave
Froedtert’s campus during meal periods without the manager’s permission because
Froedtert would not have coverage for her position if she did not return. (ECF No. 147,
¶ 16.) Lutz alleges this conversation occurred while she worked as a dietary aide in
Froedtert’s Dietary office. (ECF No. 152, ¶ 6.)
Subsequently, in October 2020, Lutz began working in Froedtert’s Sterile
Processing Department. (ECF No. 152 at ¶ 7.) Lutz believed the on-campus mealtime
restriction applied to her new position in the Sterile Processing Department because
(1) there were some days when she was the sole person responsible for cleaning and
answering questions about certain equipment, (2) she had to be available to return early
from her lunch period to answer questions about time-sensitive assignments, if she could
not answer the questions over the phone, and (3) nobody in the Sterile Processing
Department told her that she was free to leave the Froedtert campus during meal periods.
(ECF No. 147 at ¶ 17.)
Froedtert argues that, even if Lutz’s manager in the Dietary office told her she
could not leave during meal periods, that conversation has no effect on her subsequent
work in the Sterile Processing Department because it is undisputed that the individual
was no longer Lutz’s manager and that August 2020 was well before the period covered
by the statute of limitations. (ECF No. 142 at 32–33.) Although a simple change in
managers may not be dispositive, the fact that the “rule” that she could not leave
Froedtert’s campus was communicated by a manager for a prior job in a different
department rather than established by any formal policy supports Froedtert’s position.
Lutz also alleges that she had to remain on the Froedtert campus during the
relevant time in order to answer the Vocera device, which only worked on campus. (ECF
No. 144 at 27.) But she admits to periodically removing the batteries from the Vocera
device to avoid disruptions during her meal period. (Id.) While Lutz asserts that Froedtert
employees began contacting her on her personal cellphone when they could not reach
her on the Vocera device, she does not allege any reprimand or other consequences arose
from being unreachable on the Vocera device during her meal periods. (See generally id.)
Accordingly, the geographic limitations of the Vocera device do not support Lutz’s
contention that she was not free to leave during meal breaks.
Lutz further insists that she had to remain on campus because she was aware of
Froedtert’s written policy stating that staff members must “be free to leave the premise”
during meal periods. (ECF No. 144 at 30; see also ECF No. 147-2 at 2 (policy regarding
Sterile Processing Department procedure for meal periods); ECF No. 152, ¶ 37 (Froedtert
does not dispute that Lutz found this policy in a binder in the Sterile Processing
Department’s break room in June or July of 2023).) Lutz contends that the use of the
singular “premise” as opposed to “premises” meant she could only leave her work area
and not the entire Froedtert campus. (ECF No. 144 at 30.)
The use of the singular “premise” in the policy was likely a typographical error,
given that the word “premise” generally refers to “something assumed or taken for
granted,” while “premises” means “a tract of land with the buildings thereon.”
“Premise,” Merriam Webster Dictionary, available at https://www.merriam-
webster.com/dictionary/premise. The ordinary understanding of the term “premise” as
used in the context of the policy would leave one to believe that an employee could leave
the work location as a whole.
At her deposition Lutz was asked whether she believed she was allowed to leave
the premises to take a lunch break when she had a Vocera device. (ECF No. 142 at 144:5–
6.) Lutz responded, “No. I had to have permission to leave.” (Id. at 144:8.) Lutz points to
another one of Froedtert’s written policies directing staff to obtain permission from a
supervisor prior to “leaving the assigned work location during a shift.” (See ECF No. 144
at 30; see also ECF No. 147-1 (policy in question).) Froedtert contends that Lutz
misunderstands the policy because it is intended to cover employees needing to leave
their shifts for matters like dentist appointments and does not override meal policies in
theory or in practice. (ECF No. 152, ¶ 39.) Ultimately, Lutz’s deposition testimony about
needing permission, combined with Froedtert’s potentially conflicting policies, presents
a genuine dispute of fact as to whether Lutz could leave during her meal periods.
In sum, the Vocera device and prior managerial advice are immaterial to Lutz’s
ability to leave for meal periods while working in the Sterile Processing Department.
Lutz’s alleged misinterpretation of the term “premise” is also not a reasonable basis for
concluding that Froedtert did not permit her to leave its facilities during meal periods.
However, the fact that Froedtert may have required Lutz to get permission to leave means
that, absent such permission, she was not free to leave. Therefore, Froedtert’s motion for
summary judgment will be denied with respect to Lutz’s individual claim under
Wisconsin law that all meal periods were compensable due to an on-campus restriction.
2. Interruptions during Meal Periods
The Seventh Circuit “has adopted the predominant benefits test for determining
whether meal periods are work periods.” Barefield v. Vill. of Winnetka, 81 F.3d 704, 710 (7th
Cir. 1996) (citing Alexander v. City of Chi., 994 F.2d 333, 337 (7th Cir. 1993) (adopting the
test articulated in Lamon v. City of Shawnee, Kansas, 972 F.2d 1145, 1157–58 (10th Cir. 1992),
cert. denied, 507 U.S. 972 (1993))). “Under this test, a meal period is not work time if ‘the
employee’s time is not spent predominantly for the benefit of the employer.’” Id. (quoting
Alexander, 994 F.2d at 337). “The Lamon predominant benefit test—while conceivably
applicable purely as a matter of law in some instances—necessarily involves some
informed appraisal of how the particular mealtime limitations actually affected the
[employees’] mealtimes.” Alexander, 994 F.2d at 339 n.10.
According to Lutz, Froedtert did not regularly allow her thirty minutes of
uninterrupted time for meal breaks. (ECF No. 130 at ¶ 28.) Lutz estimates that, between
February 2022 and April 2023, her supervisors interrupted her meal periods, on average,
at least once per week by calling with work-related questions and asking her to come
back to the work area. (ECF No. 147, ¶ 15.) Lutz asserts that the supervisors knew she
was taking her meal break when they called because she would notify the relevant
supervisor when she was beginning her meal period each day. (ECF No. 130, ¶ 26.) Lutz
claims that the interruptions lasted five minutes or longer. (Id., ¶ 28.) The parties agree
that Froedtert automatically deducted thirty minutes for Lutz’s meal periods unless she
canceled a meal break on the timekeeping system or notified her supervisor that she did
not take a meal break. (ECF No. 152, ¶ 29.)
Froedtert attacks Lutz’s claim from four distinct angles.
i. Knowledge of Meal Interruptions
First, Froedtert contends it did not know Lutz worked during compensated meal
periods. (ECF No. 142 at 26–27.) Froedtert asserts that Lutz had the responsibility to
cancel her mealtime deduction or notify her supervisor when an interruption occurred
during her meal break. (Id. at 24.) Froedtert also points out that it only had to provide a
meal break; it was not required to ensure the employee took the time available. (Id. at 24.)
Indeed, “the FLSA stops short of requiring the employer to pay for work it did not know
about, and had no reason to know about.” (Id. at 25 (quoting Kellar v. Summit Seating, Inc.,
664 F.3d 169, 177 (7th Cir. 2011)).) However, “[e]ven if an employer has promulgated a
rule against overtime or a procedure to report overtime, the employer may still be liable
if it should have discovered by exercising reasonable diligence that its employees were
not following the rule.” Boelk v. AT & T Teleholdings, Inc., No. 12-CV-40-BBC, 2013 WL
3777251, at *6, 2013 U.S. Dist. LEXIS 101111, at *17 (W.D. Wis. July 19, 2013) (citing 29
C.F.R. § 785.13; Reich v. Dep’t of Conservation & Nat. Res., 28 F.3d 1076, 1082 (11th Cir.
1994)).
Lutz argues that Froedtert reasonably should have known she worked during her
meal periods because the person who called her for work questions during meal breaks
was the same person who she advised she was beginning her meal break. (ECF No. 144
at 24; see also ECF No. 152, ¶¶ 10–12.) Lutz could not recall if she saw any of Froedtert’s
policies that described procedures to follow in the event of an interrupted meal period.
(ECF No. 152, ¶ 31.) Even if she had, Lutz argues that Froedtert’s policies described how
meal periods “should” operate and did not conclusively communicate that employees
could cancel their meal break for timekeeping purposes if it was cut short. (ECF No. 144
at 25.)
The court agrees that the policy to which Froedtert has pointed communicates that
employees need to alert their supervisors if no meal break is taken at all but that
reasonable factfinders could disagree about whether meal periods shortened by
interruptions should be treated the same way. (See ECF No. 142 at 27.) Accordingly, a
genuine dispute of material fact exists as to what Froedtert knew about Lutz’s work
during meal periods.
ii. Business Records
Second, Froedtert asserts that Lutz’s declaration suffers from inconsistencies with
its Vocera phone records. (ECF No. 142 at 30–31.) Froedtert asserts that its records reflect
Lutz answered a call on her Vocera device, during her typical meal break, fourteen times
between February 2022 and September 2022. (Id. at 30.) Froedtert further contends that
these calls lasted less than one minute each. (Id. at 31; see also ECF No. 140-1 (Froedtert’s
record of Lutz’s Vocera activity).)
Lutz argues that Froedtert has not laid the necessary foundation to establish the
Vocera records are admissible as business records and, even if it did so, the records are
insufficient to negate Lutz’s allegations because her supervisors also called and texted
her on her personal cellphone. (ECF No. 145, ¶ 58.)
“The business-records exception removes the hearsay bar for records kept in the
course of a regularly conducted business activity if making the records is a regular
practice of that business activity, so long as ‘neither the source of information nor the
method or circumstances of preparation indicate a lack of trustworthiness.’” Miniature
Precision Components, Inc. v. Standex Elecs., Inc., 571 F. Supp. 3d 955, 967–68 (E.D. Wis.
2021) (citing Jordan v. Binns, 712 F.3d 1123, 1135 (7th Cir. 2013); Fed. R. Evid. 803(6)). To
be considered for summary judgment purposes, “[t]he evidence need not be admissible
in form, but must be admissible in content, such that, for instance, affidavits may be
considered if the substitution of oral testimony for the affidavit statements would make
the evidence admissible at trial.” Wheatley v. Factory Card & Party Outlet, 826 F.3d 412, 420
(7th Cir. 2016).
In support of the Vocera records, Froedtert provided the declaration of its network
engineer, who searched Froedtert’s records related to its Vocera system for Lutz’s
activity. (See ECF No. 140.) Lutz does not substantively challenge the network engineer’s
declaration or the accuracy of the Vocera records. (See generally ECF No. 144; see also Zayre
Corp. v. S.M. & R. Co., 882 F.2d 1145, 1148–49 (7th Cir. 1989) (challenging alleged business
records by questioning “the source of data for the printouts, the data’s accuracy, the input
procedures used to feed the data into the computer, or whether the computer was
working properly”).) A nonmoving party must “do more than simply show that there is
some metaphysical doubt as to the material facts.” Waukesha Foundry, Inc. v. Indus. Eng’g,
Inc., 91 F.3d 1002, 1007 (7th Cir. 1996). Lutz has not meaningfully challenged the
authenticity of the records, which would be admissible by way of the engineer’s
testimony.
Lutz also argues that the Vocera records do not tell the whole story because she
received work calls and texts via her personal cellphone. (ECF No. 145, ¶ 58.) Froedtert
argues that Lutz cannot rely on her personal cellphone communications because she only
alleged that interruptions occurred via her Vocera device in the operative (second
amended) complaint. (ECF No. 151 at 15.) Moreover, Lutz produced no responsive
evidence when Froedtert requested all emails, text messages, or other ESI relating to
Lutz’s complaint. (Id.)
Froedtert is correct that the failure to provide responsive evidence precludes a
plaintiff from relying on such evidence to oppose summary judgment. (See ECF No. 151
at 15 (citing Fed. R. Civ. P. 37(c)(1) (“If a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not allowed to use that information
or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.”); Moran v. Calumet City, 54 F.4th 483, 497 (7th
Cir. 2022) (holding that failure to provide responsive answers and documents during
written discovery precludes a plaintiff from using that information to oppose summary
judgment)).)
Because Lutz cannot rely on her alleged personal phone communications,
Froedtert’s records of Vocera activity undermine Lutz’s claim that she received weekly
work calls lasting at least five minutes during her meal periods.
iii. Vagueness
Froedtert argues that Lutz’s allegations are too vague to adequately establish a
claim. (ECF No. 142 at 28–30.) Froedtert suggests that Lutz has made speculative guesses
about the frequency and duration by which Vocera calls interrupted her meals. (Id. at 29.)
“[A]lthough [courts] construe the record facts in the light most favorable to the
nonmoving party, ‘[this] favor…does not extend to drawing inferences that are
supported by only speculation or conjecture.’” Osborn v. JAB Mgmt. Servs., Inc., 126 F.4th
1250, 1258 (7th Cir. 2025) (quoting Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir.
2008). Froedtert overstates the specificity required. (See ECF No. 142 at 29–30.) An
employee is “under no obligation to rebuild her schedule with precision.” Osborn, 126
F.4th at 1260.
In Osborn, the Seventh Circuit found that the employee failed to produce evidence
that would provide “even a general sense of her typical workweek” and the evidence she
provided suffered from inconsistencies. 126 F.4th at 1260. Although Froedtert has
introduced evidence of inconsistency in Lutz’s allegations, this case is a far-cry from the
Osborn example where a remote employee vaguely alleged that she worked on “customer
issues, the database, the reports…” for ten hours each day. Id. at 1259. Lutz paints with a
narrower brush, estimating the frequency, duration, and subject matter of the work-
related calls at issue. (ECF No. 144 at 24, 28–29.) Accordingly, Lutz’s allegations are not
so vague as to preclude her claim altogether.
iv. De Minimis Time
Finally, Froedtert argues that the amount of time Lutz spent answering Vocera
calls during meal periods was so “insubstantial and insignificant” that the de minimis
exception would not require compensation. (ECF No. 142 at 31.) “The de minimis
exception renders activities that take ‘insubstantial and insignificant periods of time’ not
compensable under the FLSA.” Mazurek v. Metalcraft of Mayville, Inc., 110 F.4th 938, 945
(7th Cir. 2024) (citations omitted).
Froedtert does not address the aforementioned “predominant benefits” test. See
Barefield, 81 F.3d at 710. However, the principle is similar to the concept of the de minimis
rule. The predominant benefits test requires “sufficient development of the facts to enable
a capable application of the appropriate predominant benefit standard, including a
determination of whether the [employees] are unable to pass the mealtime comfortably
because their time or attention is devoted primarily to official responsibilities.” Alexander,
994 F.2d at 339.
While this question would typically be for the finder of fact, no genuine dispute
of material fact exists because Lutz only alleges work interruptions via her Vocera (see
ECF No. 130) and has not meaningfully challenged the Vocera records (see ECF No. 144),
which reflect up to fourteen meal period phone calls over a period of eight months, each
lasting less than one minute (see ECF No. 140-1). On this record, no reasonable factfinder
could conclude that Lutz spent any meal periods with her time or attention devoted
primarily to work responsibilities. See Alexander, 994 F.2d at 339. Because Lutz fails the
predominant benefits test, the dispute of fact regarding Froedtert’s knowledge of her
work during meal periods is immaterial. Accordingly, Froedtert is entitled to judgment
as a matter of law, under federal law, as to Lutz’s claim for mealtime compensation due
to work interruptions.
However, Froedtert has introduced no evidence that Wisconsin also applies the
“predominant benefits” test. (See ECF No. 142.) Nor does Froedtert acknowledge the
Wisconsin Supreme Court’s observation that “no Wisconsin cases, statutes, or regulations
state that the de minimis doctrine applies to Wisconsin DWD regulations or in
employment disputes.” United Food, 876 N.W.2d at 114.
“[I]t is not this court’s responsibility to research and construct the parties’
arguments.” Draper v. Martin, 664 F.3d 1110, 1114 (7th Cir. 2011) (citation omitted).
Therefore, a genuine dispute of material fact remains as to whether the work calls
interrupted Lutz’s meal periods significantly enough to warrant compensation under
Wisconsin law. See Wis. Adm. Code § DWD 274.02(3) (“An on-duty meal period is a meal
period where the employer does not provide at least 30 minutes free from work.”). The
court will deny Froedtert’s motion for summary judgment under Wisconsin law.
CONCLUSION
In sum, Froedtert has established that it is entitled to judgment as a matter of
federal and state law with respect to Lutz’s class-wide claims related to overtime
compensation. Because Froedtert concedes liability for Lutz’s individual claim related to
on-call pay during overtime weeks, judgment as a matter of law for Lutz is appropriate,
subject to Lutz establishing she suffered damages during the relevant period. As for
Lutz’s individual claims related to meal period compensation, Froedtert is entitled to
judgment as a matter of federal, but not state, law with respect to Lutz’s claim based on
interruptions during meal periods. Genuine disputes of material fact preclude Froedtert’s
motion for summary judgment on Lutz’s state law claim for compensation based on
inability to leave during meal periods.
IT IS THEREFORE ORDERED that the plaintiff's motion for partial summary
judgment (ECF No. 132) is granted in part and denied in part as set forth in this decision.
IT IS FURTHER ORDERED that the defendant’s cross-motion for partial
summary judgment (ECF No. 136) is granted in part and denied in part as set forth in
this decision.
The Clerk shall schedule a status conference to discuss how the case will proceed.
Dated at Milwaukee, Wisconsin this 22nd day of July, 2025.
ON, €)) A:
WILLIAM E. DUFFI
U.S. Magistrate Judge
35