employees-in-personal-protective-equipmentCan the court grant summary judgment if the discovery and expert testimony implicate very difficult and complex scientific issues?

In 2008, Four foundry workers (“The Four”) sued their employer, Thyssenkrupp Waupaca, Inc. (“Waupaca”), alleging that Waupaca violated the Fair Labor Standards Act by not paying them overtime compensation for time they spent showering and changing clothes at Waupaca’s foundries. The four represented a class of more than 400 Waupaca workers.


Waupaca manufactured iron castings used in the automotive and other industries. For safety, Waupaca provided employees in its foundries with personal protective equipment (“PPE”) or a fire-retardant uniform. Waupaca required the employees to wear PPE while working, and failure to comply would result in discipline. Waupaca also provided employees with locker rooms with showers. Typically, when foundry workers finished their shifts making iron castings, they would clock out and then go to the Waupaca locker rooms to change and shower, where they removed their uniforms and PPE, showered, and changed into street clothes. Waupaca educated employees about the hazards of the work environment and urged employees to shower and remove their uniforms and PPE at the foundry. However, some workers left work wearing their uniforms.

The Four argued that Waupaca should pay them overtime compensation for time spent showering and changing clothes at the foundry because these activities constituted compensable work under the FLSA. The district court granted summary judgment for Waupaca.  It ruled that showering and changing clothes at the foundry was not compensable under the FLSA because the Occupational Safety and Health Administration (“OSHA”) didn’t mandate that workers in foundries like Waupaca’s shower and change clothes on-site.

On appeal, District Judge John Z. Lee, sitting by designation, wrote the opinion of the U.S. Court of Appeals, Seventh Circuit, and stated that the FLSA’s two core provisions—the minimum wage provision and the overtime provision—required that employees receive a minimum wage for each hour that they are employed and a premium wage (time and a half) for each hour they work over 40 hours in one work week. The FLSA defines the term “employ” as “to suffer or permit to work.” However, Judge Lee noted that the Act didn’t define “work.”  Other cases have held that this was a “critical hole that courts must fill.”

Along with his discussion on the FLSA and OSHA enforcement, Judge Lee explained that courts cannot ignore factual evidence and expert testimony offered by the parties to establish the compensability of an activity under the FLSA. This type of evidence is frequently offered and considered in these cases, he wrote. The judge cited Musch v. Domtar Indus., Inc., where paper mill employees brought FLSA overtime compensation claims against their employer for time they spent showering and changing clothes at the mill after their work shifts. In that case, the Seventh Circuit recognized that the parties offered evidence and expert testimony on the health impacts of exposure to certain chemicals in the mill and considered the evidence when determining the compensability of the activities under the FLSA.

Finally, although the Court of Appeals admitted this type of dispute might implicate very difficult and complex scientific issues (on which the parties and their retained scientific expert witnesses often disagree), courts cannot avoid discovery or expert testimony simply because that discovery or testimony may be costly, time consuming, or difficult to understand. As a consequence, the district court erred when it ignored the “sharp dispute” in the evidence as to the health effects of chemical exposure at Waupaca’s foundries and the impact, if any, that showering and changing clothes would have on Waupaca workers by granting summary judgment, and without allowing the Four to move forward with their evidence and expert testimony.

Judge Lee and the Seventh Circuit held that the district court erred in granting summary judgment in Waupaca’s favor. The case was remanded to allow the Four to present evidence and expert testimony.

DeKeyser v. Thyssenkrupp Waupaca, Inc., — F.3d —-, 2013 WL 5834886 (C.A.7 (Wis.) October 30, 2013)