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Workers' Overtime Claim for Showering and Changing Revived

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By Gabriella Khorasanee, JD on November 06, 2013 2:57 PM

Wouldn't it be great if you could get paid to get ready for work? Imagine if the time you spent showering and getting changed (or as the courts like to say "donning and doffing") would be considered "work." Sounds crazy at first -- until you realize the types of chemicals and compounds that some workers are exposed to, and the necessity of showering and changing.

In that instance, it seems perfectly logical.

Waupaca Foundry

Approximately 484 employees of the Waupaca Foundry have opted-in to a class action under the Fair Labor Standards Act of 1938 ("FLSA") seeking overtime compensation for the time they spend showering, and donning/doffing at the Waupaca foundries, reports the Stevens Point Journal.

The workers in the class manufacture iron castings and are required to wear "personal protective equipment" including hard hats, ear protection, steel-toed footwear, safety glasses and a fire-retardant uniform or 100% cotton clothing. Though there are showers on site in the locker rooms, Waupaca does not require that employees shower before leaving, but only recommends doing so.

The workers are not unionized, and brought suit against Waupaca seeking overtime pay for the time spent showering, donning and doffing. The district court granted Waupaca's motion for summary judgment and the workers appealed.

Legal Analysis

In a divided opinion, the Seventh Circuit reversed the district court's grant of summary judgment and remanded the case for trial. The court found three reasons for doing so: (1) its refusal to draw a negative inference from the absence of an OSHA regulation requiring workers to shower and change before leaving work; (2) questions of fact regarding the health impacts of not showering and changing before leaving work; and (3) the trial court's inability to refuse to hear a case because it may be too difficult, costly or time consuming.

Repercussions

This case will be one to watch because this case, unlike other cases involving union workers, or clear OSHA standards, is going out into unchartered territory. Depending on the outcome, it will likely have a ripple effect on similarly situated workers, what exactly constitutes "work," and what factors aid in that analysis.

The effect, however, may be short lived. On Monday, the Supreme Court heard oral arguments on the "donning and doffing" issue, in another case originating in the Seventh Circuit, reports Reuters. The particular issue in the Sandifer case has to do with the distinction between "clothing" and "protective gear" but may end up affecting the result in the Waupaca case. The Supreme Court's decision is expected this coming June.

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