On October 31, 2013, a Seventh Circuit panel decided, by a two to one vote,  to reverse a district court’s decision granting summary judgment to the employer in a Fair Labor Standards Act (FLSA) collective action involving over 400 employees seeking overtime compensation for time spent at the work site showering and changing clothes.

In granting summary judgment to the employer in DeKeyser  v. Thyssenkrupp, the district court first held that activities were compensable “work” under the FLSA if the activities were required by law, by the employer, or by “the nature of the work.” It then found that the first two elements were not satisfied because neither OSHA nor the employer had mandated that foundry workers shower and change clothes on-site. As to the third element, the district court found that whether the nature of the work required such on-site activities was “not a question that either a court or a jury is well-equipped to answer” and that the litigation process was “poorly suited” to determining what practices and procedures should be mandated on an industry-wide basis. Despite acknowledging a “sharp dispute” in the evidence regarding whether showering and clothes changing actually reduce employee health risks at the work site, the district court relied on the absence of an OSHA mandate in its hazardous material exposure standards and  concluded the nature of the work does not require such activities.

A majority of the Seventh Circuit panel disagreed. First, the majority refused to draw any negative inferences from the absence of an OSHA standard. Next, the appeals court stated that trial courts cannot ignore factual evidence and expert testimony offered by the parties to establish the compensability of an activity. Finally, the Seventh Circuit noted that courts cannot avoid discovery or expert testimony simply because it may be costly, time consuming, or difficult to understand. Because there was a “sharp dispute” in the evidence, the majority found summary judgment was inappropriate.

However, the dissenting judge noted that the district court had initially denied summary judgment based on a factual dispute over the “nature of the work” prong and directed additional discovery be undertaken. After the additional discovery, the district court examined the plaintiffs’ evidence and concluded there was a difference between OSHA requiring employers to pass on information to employees about health and safety risks and mandating the recommended actions. Significantly, the dissenting judge pointed out, “there is no requirement for donning, doffing, or showering. It is totally optional. Many employees take advantage of the convenience of having a clean uniform every day and a shower after work. Others choose to go home without either.” The judge further noted the “punitive consequences” if the time is found compensable at the rate of time-and-one-half the employees’ regular rate of pay for the three years preceding the complaint, and that “imposition of overtime retroactively and prospectively would have a serious economic impact” on the employer, even though the activity was not required.

We will monitor and report on any new developments in this case.