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Seventh Circuit Holds Lack of OSHA Regulation Cannot Provide Negative Inference in FLSA Case

by | Nov 18, 2013 | Evidence

After a couple weeks of silence here on the Hoosier Litigation Blog, due largely to a pressing workload that prevented me from issuing my weekly installment, we return to a case that I have been wanting to discuss for two weeks now. On October 30, 2013, the 7th Circuit handed down its decision in DeKeyser v. Thyssenkrupp Waupaca, Inc. In the decision – split 2-1 with a dissent – the court examined what might best be stated as the issue of whether complexity and difficulty for jury/court comprehension merits dismissal. Much more directly, the court determined that the mere lack of an OSHA regulation cannot support summary judgment in a Fair Labor Standards Act (FLSA) case.

Though the heart of this case turns on whether “showering and changing clothes at [the] Waupaca [facility] was not compensable under the FLSA because the Occupational Safety and  Health Administration (“OSHA”) . . . had not mandated that workers in foundries . . . shower and change clothes on-site[,]” I think the case stands much more broadly for the proposition that a case cannot be disposed of simply for being too complex. It may well be that the reason I read this into the case as much as I do stems from my recent reading of Judge Posner’s book Reflections on Judging in which he dedicates a substantial portion of the book to the concept. Even though the DeKeyser opinion was not authored by Judge Posner, the opinion and others to which it cites indicates that this view permeates the 7th Circuit as a whole. I will expound upon this view later in this post.

The relevant facts of the decision are very straight forward.

Waupaca manufactures iron castings used in the automotive and other industries. For safety, Waupaca provides certain employees in its six foundries with personal protective equipment (“PPE”), including hard hats, safety glasses, ear protection, steel-toed footwear, and 100% cotton clothing or a fire-retardant uniform. Waupaca requires these employees to wear PPE while working, and failure to comply with Waupaca’s safety standards can result in discipline. Waupaca also provides employees with locker rooms equipped with showers.

Typically, when foundry workers finish their shift making iron castings, they first clock out and proceed to Waupaca locker rooms, where they remove their uniforms and PPE, shower, and change into street clothes. Waupaca trains its employees about the hazards of the Waupaca work environment, including those associated with certain chemicals and dust to which some workers are exposed, and recommends that employees shower and remove their uniforms and PPE on-site. However, not all employees do so; some leave the foundry wearing their uniforms.

The issue is whether the FLSA requires Waupaca to pay for the time the employees spend showering and changing.

The FLSA was created in 1938 with the express purpose, according to President Roosevelt, to provide “[a] fair day’s pay for a fair day’s work.” The FLSA includes two key provisions. The first is a minimum wage provision. The other is an overtime provision requiring “a premium wage (one and one-half times the regular rate of pay) for each hour [workers] are ‘employ[ed]’ beyond forty hours in one work week.” The key difficulty of the FLSA is that it does not define what “work” means. Thus, it has been left to the courts to determine what “work” means in a given context. This case turns on that precise issue.

The trial court granted summary judgment in favor of the employer – Waupaca. In doing so, the trial court looked to the 9th Circuit decision Ballaris v. Wacker Siltronic Corp. that provided a three part test to determine whether a given task is “work” under the FLSA: whether the “activities are required by (1) law, (2) the rules of the employer, or (3) by the nature of the work.” The trial court determined that the showering and changing at Waupaca was neither required by the employer nor by the law. Turning to the third element, “the district court held 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.’” The trial court, instead, determined that OSHA regulations were the intended avenue to determine the third element. Thus, in the trial court’s opinion, the absence of an OSHA regulation meant that the nature of the work did not require the showering/changing for Waupaca employees.

The majority opinion disagreed with the trial court and, in so doing, reversed the decision and reinstated the case. The court of appeals’ majority took three issues with the trial court’s decision. The first issue was with the trial court drawing “negative inferences from the absence of an OSHA standard[.]” In support of that conclusion, the majority looked to a prior decision from 1980 that stated just that position. The second issue was that the trial court “ignore[d]” “factual evidence and expert testimony offered by the parties to establish the compensability of an activity under the FLSA.” As the court noted, this type of evidence is frequently used in such cases. This is particularly an issue in summary judgment motions where the standard to advance to trial is that there is a material issue of fact that remains yet unresolved.

The third issue is the complexity argument that I mentioned above. I think it best to provide the precise statement from the court first, then I shall try and delve into a bit more.

Finally, although we recognize that cases such as this may implicate very difficult and complex scientific issues (on which the parties, and their retained scientific experts, will often disagree), courts cannot avoid discovery or expert testimony simply because such discovery or testimony may be costly, time consuming, or difficult to understand. See United States v. Hall, 93 F.3d 1337, 1342–43 (7th Cir. 1996) (scientific evidence can pose “difficulties” for courts, but courts must assess it “whether it is hard to do or not”); United States v. Raszkiewicz, 169 F.3d 459, 465–66 (7th Cir. 1999) (“The particular question posed here … is a hard one. This does not give us an excuse to dodge the issue.”).

            As I began this discussion by noting, Judge Posner recently wrote a great deal on his views of court’s attempting to address complexity, be it scientific, technological, or otherwise, through simplistic methods. I think the same views are at play here. In short, the 7th Circuit is sending a strong message that there are no shortcut methods provided in the law where the issues are far more complex than courts are necessarily designed to handle. Though the issues may be far too complicated to be well suited for determination by a judge or jury, the system that we have mandates such a decision. This is hardly a new view from the 7th Circuit. Nevertheless, it is a very concrete example in which the court has rejected an otherwise seemingly rational view of reliance upon federal regulations in lieu of conducting a difficult examination of the complex issues.

Because there is a lengthy dissent, it merits a bit of discussion. The primary thrust of the dissent is that the showering and changing was not required by the company but rather was provided as an option. The dissent also recognized the practical concerns of trying to determine precisely when any given employee showered and changed and the difficulty that provides in establishing the actual amount underpaid. The dissent also advanced an interesting economic view:

Clearly the district court recognized that this was a 24–hour operation with three 8–hour shifts. This means that in order to have a worker present at a work station for the full eight hours for each shift there would be one employee donning and another employee doffing for an additional 40 minutes at time-and-a-half. The district court correctly pointed out this is not the case where a judge or a jury should decide on how to run the workplace and how to fix the problem by mandating time-and-a-half overtime. Rather, the only sensible thing is for the employees and Waupaca management to get together and set pay scales where appropriate and in an amount that will be compensable for an 8–hour workday that recognizes the process but does not include the time it takes to don and doff work clothes. The key here is that it is not a requirement and therefore theoretically the company would have the option of just closing down the shower. Maybe that would cause some employees to quit. But paying time-and-a-half for the time it takes to don and doff is not a solution for either the employees or the foundry if the employees want to keep their jobs and the foundry wants to stay in business. Simply put, “[i]f the workers have a legal right to be paid for that time [donning, doffing, and showering], the company will be less willing to pay them a high wage for the time during which they are [working]; it will push hard to reduce the hourly wage so that its overall labor costs do not rise.”

            While the dissent is certainly an interesting position and well argued, the majority opinion is the ruling decision. Thus, the 7th Circuit has rejected summary judgment based upon the absence of applicable OSHA regulations in FLSA cases. There is not too awful much more that can be said.

Join us again next time for further discussion of developments in the law.



*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time.No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.