DeKeyser et al v Thyssenkrupp Waupaca Inc
Filing
427
ORDER GRANTING 394 Motion for Summary Judgment and DENYING 386 Motion for Partial Summary Judgment, signed by Judge William C. Griesbach on 07/19/2012. As a matter of law the time spent by Plaintiffs donning and doffing work clothes, as well as showering at the end of the day, even when performed on the employers premises, are not compensable under the FLSA. These activities are not required by the law, required by the employer or required by the nature of the work. The parties shall advise the Court within the next ten days whether they believe anything further remains to be determined before judgment can be entered. See Order for full detail. (cc: all counsel) (Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RYAN DEKEYSER, THOMAS COOPER,
HARLEY GRANIUS, and CARLOS LANTZ,
on behalf of themselves and other
similarly situated,
Plaintiffs,
v.
Case No. 08-C-488
THYSSENKRUPP WAUPACA, INC., d/b/a
Waupaca Foundry, Inc.,
Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
This case is before me with a lengthy procedural history. To summarize briefly, Plaintiffs
filed this lawsuit in June 2008 against their current or past employer, Defendant Thyssenkrupp
Waupaca, Inc. d/b/a Waupaca Foundry, Inc. (Waupaca), claiming they had been denied wages for
hours worked over the preceding three-year period. Plaintiffs brought one of their claims as a
collective action for violations of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201,
et seq., as amended by the Portal-to-Portal Act of 1947 (Portal Act), 29 U.S.C. § 251, et seq.
Plaintiffs claim that under the FLSA they are owed compensation for time spent “donning and
doffing gear and equipment, showering and walking to and from the production floor.” (Compl.
¶ 1.) They claim that changing clothes and showering immediately after work are recommended
precautions because of the toxic chemicals to which they are exposed and to minimize the risk of
silica inhalation, which can cause severe and even fatal lung disease. The Court conditionally
certified a collective class pursuant to Section 216(b) of the FLSA in December 2008.
In September 2009, Plaintiffs made an effort to obtain an early determination of the viability
of its FLSA claim via summary judgment. (ECF No. 147.) Waupaca thereafter filed a cross-motion
for summary judgment. (ECF No. 169.) Perhaps out of an abundance of caution, in September
2010 the Court denied both motions in part, stating that factual issues remained as to whether the
nature of the work required compensation under the FLSA for time spent donning, doffing and
showering. (ECF No. 266.) The parties thereafter embarked on a path of expensive and timeconsuming discovery involving inquiry into the medical history of former and current Waupaca
employees, as well as the various conditions existing in the different Waupaca foundries. From this,
the parties attempted to narrow the inquiry to one or two plants for a bellwether trial of sorts, but
discovery was nonetheless exhaustive and focused on the actual health problems, if any, workers
had experienced as a result of exposure to cupola dust as a barometer of sorts of what the nature of
the work required. The health risks alleged from failing to change and shower after work were not
just limited to former and current employees but also included their families and others, yielding
a potentially infinite amount of discovery. Discovery also presented many challenges in the form
of endless variables in the individual health problems of employees and their causes. In other
words, the case seemed to take on the appearance of the kind of expensive and time-consuming
investigation and research program that would serve as a basis for adopting a regulatory response
to the industry-wide question of whether foundry workers should be required to change their clothes
and shower after work, as opposed to the kind of concrete and narrow determination that is more
commonly the subject of litigation.
2
Frustrated with the expense and delay involved in proceeding in this manner, Plaintiffs
requested that the Court determine what the standard is for compensable “principal activities” under
the FLSA. More specifically, Plaintiffs requested that this Court determine that employee activities
that were in compliance with the instructions an employer was required to give workers under the
Hazard Communication Standard, 29 C.F.R. § 1910.1200, promulgated by the Occupational Safety
and Health Administration (OSHA) are compensable “principal activities” within the meaning of
the FLSA as a matter of law. Hourly employees, Plaintiffs argue, should not be expected to
establish the scientific validity of precautions recommended by government agencies and
manufacturers of hazardous chemicals which OSHA requires their employer to convey to them.
To a large extent, Plaintiffs’ request amounted to having the Court revisit the central issue
raised in the earlier motion for summary judgment. Over Waupaca’s objection, the Court agreed
with Plaintiffs that the issue they had raised was one of law that would either determine liability or
lend itself to certification for determination by the Court of Appeals. Either way, the Court
concluded that resolution of the issue would advance the ultimate disposition of the case and rescue
the parties from the “bottomless pit” into which they had fallen, been pushed or leaped (depending
on one’s view of the procedural history of the case). Although the Court suggested that the parties
simply supplement their previous summary judgment motions, they reasonably suggested that they
submit new briefs that would present their full arguments. The parties have each done so and the
case is before me now for resolution. (ECF Nos. 386, 394.)
For the reasons discussed herein, the Court now concludes that employee activities that are
in compliance with the hazard communication instructions that OSHA requires employers to give
its employees are not for that reason alone compensable principal activities within the meaning of
3
the FLSA. The Court further concludes that the legal standard applicable to the disposition of this
case is whether the donning, doffing and showering activities are required by (1) the law; (2) the
employer; or (3) the nature of the work. The undisputed facts of the case reveal that the activities
at issue do not meet this standard and thus are not “work” under the FLSA. They therefore are not
compensable. As a consequence, Waupaca is entitled to summary judgment on Plaintiffs’ FLSA
claim.
BACKGROUND
Defendant Waupaca employs approximately 3,500 people and operates six foundries in
Waupaca and Marinette, Wisconsin; Tell City, Indiana; and Etowah, Tennessee. (ECF No. 219 at
2.) It manufactures a variety of ductile and gray iron cast parts for use in the automotive and other
industries. (Id.) The parties agree that the work done at Waupaca’s plants generates dust containing
silica. (ECF No. 234 at 2.) The parties also agree that silica can be extremely hazardous to human
health if ingested or inhaled in sufficient amounts.
Waupaca, like all employers whose employees can be exposed to hazardous chemicals or
substances in the workplace, is governed by the Hazard Communication Standard (HSC)
promulgated by OSHA. The HSC regulation imposes various requirements on employers aimed
at ensuring that their employees are informed of the potential hazards posed by chemicals found at
their workplace. Specifically, the standard required chemical manufacturers to label containers of
hazardous chemicals with appropriate warnings. “Downstream” manufacturers — commercial
purchasers who use the chemicals in their manufacturing plants — are obliged to keep the original
labels intact or else transfer the information onto any substitute containers. The standard also
4
requires chemical manufacturers to provide material safety data sheets (MSDS) to downstream
manufacturers. The MSDSs are required to list the physical characteristics and hazards of each
chemical, the symptoms caused by overexposure and any pre-existing medical conditions
aggravated by exposure. In addition, the data sheets must recommend safety precautions and first
aid and emergency procedures in case of overexposure, and provide a source for additional
information. Both chemical manufacturers and downstream manufacturers are required to make the
data sheets available to their employees and to provide training on the dangers of the particular
hazardous chemicals found at each workplace. Dole v. United Steelworkers of America, 494 U.S.
26, 28–29 (1990).
Covered employers are required by OSHA to have a written hazard
communication program (HAZCOM) which is intended to convey the required information to the
employees. 29 C.F.R. § 1910.1200(e).
Although Plaintiffs have previously focused primarily on exposure to silica dust as the
primary risk warranting on-site changing and showering, in their more recent motion they have
submitted many of the large number of MSDSs Waupaca produced in the course of discovery.
Many concern chemicals that Waupaca does not use anymore. Others are used only in certain
defined areas by specialized personnel who take other precautions to avoid the kind of exposure
for which remedies are described. The showering, clothes handling/changing and laundering
practices that are referenced in a number of the MSDSs relate to exposure circumstances that do not
typically occur at the Waupaca plants. The showers, eye wash and fountains referenced in several
MSDSs are safety showers, emergency eye wash stations and water fountains that are on the
production floor and are used by employees in situations – often emergencies – where there can be
an acute exposure to a particular chemical that requires immediate flushing of the area with water.
5
These are not the same showers as those that are found in the locker rooms at the Waupaca plants,
and the types of emergency washing recommended in these MSDSs are performed on the clock and
are not at issue here.
Waupaca’s training materials, which form part of its HAZCOM program, state the following
concerning silica dust and lead dust:
CUPOLA DUST
Cupola dust is a grayish-brown flour-like material that can be intentionally collected
within a bag house or may drop out in portions of Melt area emission control
equipment. Cupola dust is the resultant combination of dust from incoming scrap,
cupola additives (such as limestone), and by-products of the cupola combustion
process. Though cupola dust is a stable, inert material, it does pose a long-term
exposure hazard due to the presence of crystalline silica and lead. Both silica and
lead can be detrimental to your health if inhaled in excessive quantities.
Silica (also quartz) can be hazardous when particles smaller than four-ten
thousandths of an inch are inhaled into the lungs. High or long term exposures can
result in silicosis, a scarring of the lungs that results in shortness of breath,
wheezing, and coughing. Complicated cases involving increasing exposures can
exhibit increasing forms of respiratory disease.
Lead also poses a hazard if inhaled or ingested. Both short and long-term
overexposures may produce symptoms, though short-term overexposures are rare.
Long-term overexposure may result in damage to the blood-forming, nervous,
urinary, and reproductive systems. Some common symptoms include loss of
appetite, metallic taste in the mouth, anxiety, constipation, nausea, pallor, excessive
tiredness-weakness, muscle and joint pain, tremors, and dizziness.
Both silica and lead exist within cupola dust as dust particles. With the proper
practices and personal protective equipment, cupola dust can be handled safely.
When working in an area that contains cupola dust, effort must be made to avoid
generating airborne dusts. Clean-up should be performed via dustless methods (e.g.
vacuum). Air wands or aggressive sweeping should be avoided. Areas should be
engineered to keep dust contained within bins or hoppers, not all over the floor.
After working in a dusty area, practice good personal hygiene by showering and
leaving your uniform at work. Cupola dust poses no hazard from skin contact, but
showering at work will prevent the material from being tracked into your car or
home. During the day, wash hands and face prior to eating, drinking, or smoking.
6
Industrial hygiene sampling must be performed within each work area to confirm the
necessary Personal Protective Equipment (PPE) required. Generally, plant floor
locations require no respiratory protection, maintenance workers may require a High
Efficiency half-face dust mask when working near chutes and conveyors, and
workers may require a High Efficiency full-face powered respirator when cleaning
cupola dust from within confined spaces or other activities that generate significant
dust within enclosed areas.
Following these procedures, along with good work habits, will help eliminate
unnecessary exposures to cupola dust. If you work within an area that contains
cupola dust, and you have any questions, contact the Environmental Department.
(ECF No. 398-7) (italics added).
Plaintiffs have not identified a statute or regulation requiring foundry workers to change and
shower at the work place. Nor have they presented evidence of an employer rule or policy
mandating that they do so. Instead, Plaintiffs point to the numerous MSDSs that Waupaca produced
during discovery which recommend washing, changing clothes and/or showering in the event of
skin contact or some other form of exposure, and the fact that Waupaca recommends that foundry
workers change out of work clothes at the end of their work shifts in an effort to minimize the health
risks associated with exposure to respirable silica. OSHA does recommend that construction
employees exposed to crystalline silica “shower if facilities are available” (ECF No. 149, Ex. AA
at 2.), but of course construction work is usually performed in locations that do not have the
environmental controls that exist in a closed plant, such as a foundry. In any event, Plaintiffs argue
from these recommendations that the nature of their work requires changing and showering at the
work site and that these activities therefore constitute compensable principal activities within the
meaning of the FLSA.
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LEGAL STANDARD
Rule 56 provides that: “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). The moving party has the initial burden of demonstrating that it is
entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once this
burden is met, the nonmoving party must designate specific facts to support or defend each element
of the cause of action, showing that there is a genuine issue for trial. Id. at 322–24. Where, as here,
each party will move for summary judgment, each movant bears this burden. DeKeyser v.
ThyssenKrupp Waupaca, Inc., 747 F. Supp. 2d 1043, 1049 (E.D. Wis. 2010).
ANALYSIS
The FLSA provides that employees receive “[a] fair day’s pay for a fair day’s work.”
Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 578 (1942); superseded by statute,
Portal-to-Portal Act, 29 U.S.C. § 251. Specifically:
[N]o employer shall employ any of his employees . . . 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.
29 U.S.C. § 207(a)(1). This guarantee of compensation at time and one-half for any hours beyond
the forty hour workweek only applies to “work or employment engaged in by employees covered
by the Act.” Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602–603
(1944); superseded by statute, Portal-to-Portal Act, 29 U.S.C. § 251.
8
But the FLSA does not define “work” leaving a crucial hole the courts must fill. Early
decisions interpreted the term very broadly to include “physical or mental exertion (whether
burdensome or not) controlled or required by the employer and pursued necessarily and primarily
for the benefit of the employer . . . ” Id. at 598. In 1944, the Supreme Court held that work may
include “non-exertional acts” because an employer “may hire a man to do nothing or to do nothing
but wait for something to happen.” Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944).
In 1946, the Court held that the FLSA required employers to pay employees for donning and
doffing aprons and overalls, and walking to their work stations, all of which occurred after they
arrived at the front gate and punched in at a time clock. Anderson v. Mount Celmons Pottery Co.,
328 U.S. 680, 691–93 (1946). In 1947, largely in response to claims that the Court’s ruling in
Anderson would result in “wholly unexpected liabilities, immense in amount and retroactive in
operation,” Steiner v. Mitchell, 350 U.S. 247, 253 (1956), Congress enacted the Portal-to-Portal Act.
The Portal-to-Portal Act excludes certain activities from the concept of work under the FLSA,
including:
(1) walking, riding, or traveling to and from the actual place of performance of the
principal activity or activities which such employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said principal activity or
activities, which occur either prior to the time on any particular workday at which
such employee commences, or subsequent to the time on any particular workday at
which he ceases, such principal activity or activities.
29 U.S.C. § 254(a). The phrase “preliminary to or postliminary to said principal activity or
activities” is not contained in the FLSA’s statutory definitions, 29 U.S.C. § 203, or the definitions
set forth in the Portal Act. See 29 U.S.C. § 262. Nor are any of the words within that phrase. Id.
9
After the enactment of the Portal-to-Portal Act, the Secretary of Labor promulgated
regulations, which remain largely unchanged to this day. The regulations make clear that as a
general rule, changing clothes and showering are normally considered non-compensable preliminary
and postliminary activities. 29 C.F.R. § 790.7(g). The regulations also make clear, however, that
donning and doffing work clothes can, under certain circumstances, constitute compensable work:
If an employee in a chemical plant, for example, cannot perform his principal
activities without putting on certain clothes, changing clothes on the employer’s
premises … would be an integral part of the employee’s principal activity. On the
other hand, if changing clothes is merely a convenience to the employee and directly
related to his principal activities, it would be considered as a “preliminary” or
“postliminary” activity . . .
29 C.F.R. § 780.8(c). The regulation further explains: “Such a situation may exist where the
changing of clothes on the employer’s premises is required by law, by rules of the employer, or by
the nature of the work.” 29 C.F.R. § 790.8(c), n.65.
The Supreme Court considered whether donning and doffing clothes were “principal
activities” or merely “preliminary and postliminary activities” within the meaning of the
Portal-to-Portal Act in Steiner v. Mitchell, 350 U.S. 247 (1956). Under the Portal-to-Portal Act,
“changing clothes . . . under normal conditions” was found to be not compensable but “activities
performed either before or after the regular work shift . . . are compensable . . . if those activities
are an integral and indispensable part of the principal activities for which covered workmen are
employed.” Id. at 249, 256. This ruling created, in essence, an exception to the exception. If any
activity is found to be “integral and indispensable” to a worker’s principal activity, it must be paid
for under the FLSA, irrespective of whether or not it is “preliminary or postliminary” under the
Portal-to-Portal Act. Perez v. Mountaire Farms, Inc., 650 F.3d 350, 363 (4th Cir. 2011). Under
10
the facts of Steiner, the Supreme Court had “no difficulty” concluding that the employees should
be compensated for donning, doffing and showering. 350 U.S. at 256.
Since Steiner, different circuits have adopted different approaches to determining whether
the donning and doffing of certain protective gear is “integral and indispensable” to employees’
work. In general, however, it appears that Steiner’s “integral and indispensable” standard is
considered met if, in the words of the DOL regulation, the activity at issue is required by law, the
rules of the employer, or by the nature of the work. The most predominant case seems to come out
of the Ninth Circuit. Its formulation of the legal standard is that where:
the changing of clothes on the employer’s premises is required by law, by rules of
the employer, or by the nature of the work, the activity may be considered integral
and indispensable to the principal activities.
Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 910 (9th Cir. 2004); see also Bamonte v. City of
Mesa, 598 F.3d 1217, 1233 (9th Cir. 2010).
Waupaca argues that the Court should adopt what it refers to as the “at home” rule, under
which employees need not be compensated for donning, doffing and showering activities if they
have the option of performing them at home. (Def.’s Br. In Supp. Of Mot. For S. J., ECF No. 395,
at 24.) Under the “at home” rule, as Waupaca views it, changing clothes and showering are
considered integral and indispensable to the employee’s principal activities only if the law or the
employer require that they be performed on site. Since neither the law in this case, nor the
employer’s work rules, require that employees change their clothes and shower at the plant,
Waupaca contends that such activities are not compensable.
In essence, Waupaca is urging the Court to ignore the possibility that changing clothes and
showering immediately after work could be required “by the nature of the work.” Absent a law or
11
work rule, of course, employees will always have the option of performing these activities at home,
even if doing so seriously endangers their health. The “nature of the work” can never compel an
employee to shower on site in the same sense that a law or work rule can. The law and the employer
have authority over an employee that can be exercised to compel him (if he wants to retain his
employment) to perform activities that he might not want to do; the nature of the work does not.
Thus, if the nature of the work can require the employee to do anything, it obviously means
something different. As Plaintiffs’ argument suggests, it must mean that the nature of the work is
such that it is reasonably necessary for employees to change clothes and shower on site in order to
protect their health.
It is this issue that prevented me from previously disposing of the case on summary
judgment. In my earlier ruling, I concluded that a factual dispute over whether the nature of the
work required the employees to don, doff and shower at work precluded entry of summary
judgment. Plaintiffs argued, as they do here, that because OSHA requires Waupaca to advise its
employees who work around silica dust to change their clothes and shower before leaving work that
those activities are necessarily compensable when actually performed at work by the employees.
Plaintiffs also submitted evidence of specific employee complaints of dusty working conditions and
black mucus discharges. Waupaca, on the other hand, argued that general recommendations
mandated by OSHA were not sufficient to compel such a conclusion, especially in light of evidence
that health risks to employees who elected not to change and shower at work were negligible.
Waupaca supported its argument with declarations by several experts who opined, inter alia, that
Waupaca’s engineering controls and respiratory protection program significantly lowered the risks
from silica exposure and that there was no peer-reviewed published literature that provided support
12
for a policy of mandatory showering or clothes doffing after work with silica in the foundry setting.
Given this state of the record, I concluded that a trial, or at least further discovery, was needed.
As the record reflects, discovery since that decision has been directed at the underlying
question of whether the risks associated with exposure to silica at the Waupaca foundries poses a
substantial risk to workers such that donning and doffing work clothes and showering at the plant
at the end of the work day can be said to be required by the nature of the work. This is not a
question that either a court or a jury is well-equipped to answer. The amount of exposure varies
among employees and from plant to plant, within plants from location to location, and even from
day to day depending on the kind and amount of work performed. The plants are equipped with
environmental controls that are designed to limit the amount of silica in the air, which they do with
varying success. In response to Plaintiffs’ claim that on-site showering is necessary and their
suggestion that at least some employees may have contracted respiratory diseases as a result of
exposure to silica, Waupaca has sought Plaintiffs’ medical records in discovery and wants to
schedule an unknown number of depositions and perhaps its own medical examinations to
determine the number of former or current employees who have health problems attributable their
employment at Waupaca. Even assuming an employment-related health condition is discovered,
it is unclear whether and how it will be determined that it was due to the employee’s failure to
change clothing and shower at work, as opposed to the employee’s ordinary exposure to silica over
the course of the typical workday. In light of these difficulties, Plaintiffs’ argument that a simpler
standard should be adopted is reasonable. But I cannot agree with Plaintiffs’ argument as to what
that standard should be.
13
Plaintiffs ask the Court to hold that as a matter of law “pre- and post-shift activities
performed in compliance with an employer’s hazard communication instructions and training are
compensable ‘principal activities’ under Fair Labor Standards Act.” (Pl.’s Mem. In Supp. Of Mot
for Partial S.J., ECF No. 398, at 1.) This holding is warranted, Plaintiff contend, given the federal
framework for addressing employee health risks resulting from exposure to hazardous substances
and the liberal rule of construction afforded to remedial statutes. Plaintiffs note that activities that
are necessary in order for employees to safely perform their jobs are “an integral and indispensable
part of a principal activity” and therefore compensable under the FLSA. (Id. at 11 (citing Perez, 650
F.3d at 367; Spoerle v. Kraft Foods Global, Inc., 527 F. Supp.2d 860, 864 (W.D. Wis. 2007)). It
follows from this, Plaintiffs contend, that activities that are in compliance with recommendations
mandated by OSHA are likewise integral and indispensable to principal work activities. “These
warnings and precautions do not involve mere ‘recommendations’ provided solely for employees’
convenience — they are instead mandated by federal law.” (Id. at 23.) And if the recommendations
are mandated by federal law, then the actions taken in compliance with those recommendations
should be considered required by the nature of the work.
But what the law cited by Plaintiffs requires is that employees be given information, not that
they be compelled to act on it. In other words, OSHA requires that employees be provided
information, including safety precautions about hazardous chemicals and substances to which they
may be exposed at work and recommendations of what to do if they are exposed. OSHA does not
require that employees comply with those recommendations, nor does it require that employers
compel their employees to comply. The difference is significant.
14
OSHA is the administrative agency within the Department of Labor responsible for
promulgating and enforcing standards under the Occupational Safety and Health Act of 1970 (the
OSH Act), 29 U.S.C. § 651 et seq. The OSH Act “was enacted for the purpose of ensuring safe and
healthful working conditions for every working man and woman in the Nation.” Industrial Union
Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 611 (1980); 29 U.S.C. § 651(b).
Congress sought to accomplish this purpose “by authorizing the Secretary of Labor to set mandatory
occupational safety and health standards applicable to businesses affecting interstate
commerce . . . . ” 29 U.S.C. § 651(b)(3). The Act defines the “occupational safety and health
standard” as “a standard which requires conditions, or the adoption or use of one or more practices,
means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or
healthful employment and places of employment.” 29 U.S.C. § 652(8). Standards that deal with
toxic chemicals or harmful physical agents must also comply with § 655(b)(5), which provides:
The Secretary, in promulgating standards dealing with toxic materials or harmful
physical agents under this subsection, shall set the standard which most adequately
assures, to the extent feasible, on the basis of the best available evidence, that no
employee will suffer material impairment of health or functional capacity even if
such employee has regular exposure to the hazard dealt with by such standard for the
period of his working life. Development of standards under this subsection shall be
based upon research, demonstrations, experiments, and such other information as
may be appropriate. In addition to the attainment of the highest degree of health and
safety protection for the employee, other considerations shall be the latest available
scientific data in the field, the feasibility of the standards, and experience gained
under this and other health and safety laws.
29 U.S.C. § 655(b)(5).
The procedure OSHA must follow to set occupational safety and health standards contrasts
markedly with the litigation process. “OSHA can begin standards-setting procedures on its own
initiative, or in response to petitions from other parties, including the Secretary of Health and
15
Human Services (HHS); the National Institute for Occupational Safety and Health (NIOSH); state
and local governments; any nationally-recognized standards-producing organization; employer or
labor representatives; or any other interested person.” OSHA Standards Development, Dept. of
Labor website, http://www.osha.gov/OCIS/stand_dev.html (last visited July 12, 2012). If OSHA
determines that a specific standard is needed, it may call upon any of several advisory committees
to develop specific recommendations. Id. Once OSHA determines what the standard should be,
it publishes a "Notice of Proposed Rulemaking" in the Federal Register. The Notice of Proposed
Rulemaking includes the terms of the new rule and provides a specific time period for the public
to respond. Interested parties can submit written arguments and pertinent evidence, and also may
request a public hearing on the proposal if none has been announced in the notice. When such a
hearing is requested, OSHA will schedule one, and will publish, in advance, the time and place for
it in the Federal Register. Id.
Since it is OSHA’s job to “set mandatory occupational safety and health standards” for
businesses such as Waupaca, 29 U.S.C. § 651(b)(3), and to determine the “practices, means,
methods operations or processes reasonably necessary or appropriate to safe or healthful
employment or places of employment,” 29 U.S.C. § 652(8), the fact that OSHA does not require
workers in foundries such as Waupaca’s to change clothes and shower on site would seem to
indicate that OSHA has concluded that such activities are not required by the nature of the work.
OSHA clearly has the authority to compel employers to require their employees to shower and
change clothes at the work site when it concludes that risks to health or safety require such
precautions. See, e.g., 29 C.F.R. § 1910.1003(c)(4)(v), (vii) (requiring employees who work in
16
areas with certain carcinogens to remove and leave protective clothing and equipment at the point
of exit and to shower upon leaving at end of day). Indeed, it has the duty to do so.
It is not as if OSHA is not aware of the risk to employees health and safety that exposure to
silica presents. OSHA has an established Permissible Exposure Limit, or PEL, which is the
maximum amount of crystalline silica to which workers may be exposed during an 8-hour work
shift. See 29 CFR 1926.55, 1910.1000. In fact, OSHA has recently proposed a new standard for
silica that would lower the PEL. Although the proposed new standard has apparently been stalled
in
the
Office
of
Information
and
Regulatory
Affairs,
http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201010&RIN=1218-AB70
(last
visited July 12, 2012), the fact that OSHA has acted demonstrates that it is aware of the health risks
involved and has used its considerable expertise and resources to address it. If OSHA has not so
far adopted a standard that requires foundry workers exposed to silica to change clothes and shower
on site, it must mean that it has not found such procedures to be “reasonably necessary or
appropriate to safe or healthful employment or places of employment.” 29 U.S.C. § 652(8).
Plaintiffs, apparently dissatisfied with the standard OSHA has adopted, have in essence
asked this Court to overrule OSHA and adopt a more stringent standard under which they would
be entitled to compensation for donning and doffing their work clothes before and after work and
for showering at the end of the day. They base their request on the fact that even though OSHA has
not mandated the specific procedures they advocate, it does require their employer to provide them
information about the dangers of silica exposure, including recommendations for changing clothes
and showering immediate after work. If OSHA has concluded that the risks from silica exposure
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warrant requiring employers to recommend such activities, Plaintiffs argue, then it only makes sense
to conclude that those activities are reasonably necessary for employee health and safety.
There is a difference, however, between requiring employers to pass on information to
employees about health and safety precautions and recommendations and mandating the
recommended actions. Plaintiffs’ proposed standard for work under the FLSA would incorporate
into the definition of compensable activities any on-site pre- or post-shift activity that is performed
in compliance with an employer’s hazard communication instructions and training. This goes
beyond the purpose or intent of OSHA’s HCS, 29 C.F.R. § 1910.1200. The purpose of OSHA’s
HCS is to provide information to employees about the hazardous chemicals and substances that are
in the workplace, not to mandate certain conduct. As explained in the preamble to the final rule:
It should also be noted that just as a chemical manufacturer cannot make specific
control measure recommendations for unknown downstream uses, it also cannot
accurately predict the hazard presented by the chemical downstream. Therefore, the
chemical manufacturer must provide thorough hazard information, which would be
applicable to a full range of reasonably foreseeable exposure situations, rather than
limiting the information on the basis of presumed use. The downstream employer
will then be assured of having the information reasonably necessary to make
informed choices for control measures.
48 Fed. Reg. 53280-01 (Nov. 25, 1983). Thus, the employer remains free, absent an OSHA
standard providing otherwise, to determine the health and safety rules that best protect its workforce
taking into consideration the unique circumstances of its workplace.
A further difficulty with Plaintiffs’ argument is that it assumes that the recommendations
contained in the MSDS the employers are required to incorporate into their HAZCOM programs
and make available to employees are supported by extensive scientific research. But there is no
evidence that this is the case. Of course, no one disputes that ingesting or inhaling silica in
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sufficient amounts can cause serious disease and even death. Thus, employees are encouraged to
take reasonable measures to insure that they minimize their exposure. But there is no evidence that
showering after work appreciably reduces the risk to human health that otherwise exists at plants
like Waupaca’s. The mere fact that foundries are required to convey such a recommendation to its
employees does not mean that it has been scientifically tested and proven necessary. See Moore v.
Ashland Chem. Inc., 151 F.3d 269, 278 (5th Cir. 1998) (holding that a MSDS has limited scientific
value when it is unknown what tests were conducted in generating the MSDS); Turner v. Iowa Fire
Equipment Co., 229 F.3d 1202, 1209 (8th Cir. 2000) (same). OSHA requires that chemical
manufacturers or importers prepare data sheets that identify the hazards of the product they sell and
the measures that should be taken to minimize any health risk. 29 C.F.R. § 1910.1200(g). While
a manufacturer or seller is likely to incur liability for injury resulting from a failure to adequately
warn, there is no penalty for over-warning. Thus, there may be good reason to question whether
all of the precautions recommended in a MSDS are reasonably necessary for the health of the
employee. As Waupaca notes, even water has a MSDS, the recommended personal protection for
which is “safety glasses” and a “lab coat.” (Def. St. Of Additional Facts, “DSAF,” ECF No. 408,
¶ 60.)
For these reasons, I reject Plaintiffs’ proposed standard and hold that activities in compliance
with the recommendations contained in the employer’s HAZCOM are not for that reason alone
compensable under the FLSA. To adopt Plaintiffs’ standard would be to expand the FLSA
definition of compensable principal activities to an unforeseeable limit. Instead, I conclude that the
fact that OSHA has promulgated a standard for silica exposure that does not mandate changing
clothes and showering after work requires the conclusion that such activities are not required by the
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nature of the work. As the history of this case surely demonstrates, the process of litigation is
poorly suited to determining the practices and procedures that should be mandated to protect worker
health and safety in the workplace on an industry-wide basis. Congress, in enacting the OSH Act,
intended such issues to be determined through the regulatory process that the Act establishes. For
this Court to conclude that changing clothes and showering after work is required by the nature of
the work Plaintiffs are hired to perform would be to usurp the role Congress explicitly delegated to
the Department of Labor. This I decline to do. Given the power and authority Congress has
delegated to OSHA over such matters, it makes no sense to subject employers to the huge costs and
unpredictable results of litigating the same issues in the nation’s courts.
Throughout this litigation, Plaintiffs have pointed to Steiner as support for their position that
their working conditions by themselves made changing clothes and showering compensable under
the FLSA, even in the absence of a statute or work rule requiring such activities. But Steiner is
distinguishable from the facts of this case. In Steiner, the Supreme Court noted that the production
employees routinely worked with lead metal, lead oxide, lead sulphate, lead peroxide, and sulphuric
acid, and that in general these chemicals “permeate[d] the entire plant and everything and everyone
in it.” Id. at 249. The conditions at issue here are far less severe. More importantly, the employer
in Steiner required the employees to change and shower. In its statement of the material facts, the
Court expressly noted: “Petitioners issued no written instructions to employees on this subject, but
the employees testified and the foreman declared in a signed statement that ‘In the afternoon the
men are required by the company to take a bath because lead oxide might be absorbed into the blood
stream.’” 350 U.S. at 251. While Plaintiffs dispute this finding, pointing to the statement of facts
in the lower court decisions in the case, (Pl.s’ Mem. In Supp. Of Mot. For S.J., ECF No. 398, at
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11–13), there can be no doubt that as the Supreme Court saw the facts, the employer did require the
activities for which the employees sought compensation. Finally, Steiner differs from this case in
that at the time Steiner was decided, OSHA did not exist. The fact that Congress has created an
agency that has as its express purpose the setting of health and safety standards for the workplace
and that that agency has promulgated regulations addressing the risk of silica exposure that do not
mandate changing clothes and showering at the work site are enough to distinguish this case from
Steiner.
Of course, nothing said here should be interpreted as suggesting that employees who work
in a foundry should not change their clothes and shower after work. Most employees who perform
manual labor under hot, dirty or dusty conditions shower and change their clothes after work with
no expectation of being paid for it, not because of concerns for their health, but simply because they,
or their families, insist that they be clean. Plaintiffs have an added reason to shower and change
their clothes and enjoy the added benefit of being able to do so at work using soap and water
supplied by their employer. But for the reasons stated above, I conclude that the nature of their
work is not such as to require that they do so.
One final point should be made. It is the point Judge Posner recently made in addressing
this issue with respect to employees at a U.S. Steel plant in Indiana:
From a worker's standpoint any time spent on the factory grounds is time “at work”
in the sense of time away from home or some other place where he might prefer to
be if he weren't at work. But it is not time during which he is making steel, and so
it is not time for which the company will willingly pay. If the workers have a legal
right to be paid for that time, the company will be less willing to pay them a high
wage for the time during which they are making steel; it will push hard to reduce the
hourly wage so that its overall labor costs do not rise. The steel industry is
international and highly competitive, and unions temper their wage demands to
avoid killing the goose that lays the golden eggs. They don't want the American
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steel industry to go where so much American manufacturing has gone in recent
years—abroad. The plaintiffs are adverse to their union, to the interests of other
steelworkers, and to their own long-term interests.
Sandifer v. U.S. Steel Corp., 678 F.3d 590, 594–95 (7th Cir. 2012). As Plaintiffs correctly note,
Sandifer is not directly relevant here because it was decided under the collective bargaining
exception to the Portal to Portal Act, 29 U.S.C. § 203(o). There is no collective bargaining
agreement here. But the same concerns apply. The foundry industry is also international and highly
competitive. For the same reasons suggested by Judge Posner in Sandifer, the interests of Plaintiffs,
many of whom are no longer employed by Waupaca, may be adverse to the long-term interests of
the current and future employees.
CONCLUSION
For the reasons set forth above, I conclude that as a matter of law the time spent by Plaintiffs
donning and doffing work clothes, as well as showering at the end of the day, even when performed
on the employer’s premises, are not compensable under the FLSA. These activities are not required
by the law, required by the employer or required by the nature of the work. Accordingly,
Defendant’s motion for partial summary judgment (ECF No. 394) is granted, and Plaintiffs’ motion
is denied. (ECF No. 386). The parties shall advise the Court within the next ten days whether they
believe anything further remains to be determined before judgment can be entered.
SO ORDERED this
19th
day of July, 2012.
s/ William C. Griesbach
William C. Griesbach
United States District Judge
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