DeKeyser et al v Thyssenkrupp Waupaca Inc

Filing 437

DECISION AND ORDER FOR JUDGMENT dismissing Plaintiffs claims in their entirety, signed by Judge William C Griesbach on 09/06/2012. See Decision for full detail. The Clerk is directed to enter judgment in favor of the Defendant and against the Plaintiffs. (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.

DECISION AND ORDER FOR JUDGMENT

On July 19, 2012, the Court entered its Decision and Order dismissing Plaintiffs’ FLSA
claims in the above matter. (ECF No. 427.) Subsequently, the Court instructed the parties to
advise whether they believe that any of the remaining state law claims would survive given the
Court’s holding under the FLSA. Plaintiffs indicated that certain federal district courts in the
Seventh Circuit have held that Wisconsin’s state law concerning “donning and doffing” activity are
more protective than the FLSA. Plaintiffs requested an opportunity to brief the issue, which I
granted on July 31, 2012. The parties have now fully briefed the issues regarding the viability of
Plaintiffs’ remaining state law claims. In addition, Plaintiffs have requested clarification of the
Court’s July 19, 2012 decision.

1. Wisconsin State Law
Plaintiffs in their briefs argue that Wisconsin law is more generous than the Fair Labor
Standards Act (FLSA) in regard to compensation for time spent donning and doffing safety gear.
Plaintiffs primarily rely upon a comparison between Wis. Admin. Code DWD § 272.12(2)(e)1.c.
and 29 C.F.R. 790.8(c), the federal counterpart to Wisconsin’s administrative code provision. The
administrative code section outlines the interpretive guidelines for determining what constitutes
hours worked by employees. For the determination of what preparatory or concluding activities fall
within the administrative definition of “hours worked,” § 272.12(2)(e)1.c., provides that:
Among the activities included as an integral part of the principal activity are those closely
related activities which are indispensable to its performance. If an employee in a chemical
plant, for example, cannot perform their principal activities without putting on certain
clothes, changing clothes on the employer's premises at the beginning and end of the
workday 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 not directly related to their
principal activities, it would be considered as a "preliminary" or "postliminary" activity
rather than a principal part of the activity. However, activities such as checking in and out
and waiting in line to do so would not ordinarily be regarded as integral parts of the
principal activity or activities.
The language used in § 272.12(2)(e)1.c. is, other than the alternative use of a personal pronoun,
identical to the language in 29 C.F.R. § 790.8(c). However, Plaintiffs argue that the Wisconsin code
section should be interpreted under a different standard because § 790.8(c) includes a footnote that
does not similarly appear in Wisconsin’s administrative code section or in the annotations. The
footnote referenced explains that activities included as a part of principal activities in employment
may arise where the activity “is required by law, by rules of the employer, or by the nature of the
work.” § 790.8(c) n.65. Because the footnote text does not appear in the Wisconsin code, Plaintiffs
argue that § 272.12(2)(e)1.c. must be interpreted under a different standard. That standard,

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Plaintiffs suggest, is whether or not the activity at issue is performed as “merely a convenience to
the employee.”
The Court need not explore the parameters of Plaintiffs’ proposed standard because the
determination of whether activity is preliminary or postliminary under the FLSA or Wisconsin law
will follow the same analysis where the language used by the regulations to define the activity is
identical. See Munsh v. Domtar Indus., Inc., No. 07-cv-524-bbc, 2008 WL 4735171, at *6 (W.D.
Wis. Oct. 24, 2008) (comparing Wis. Admin. Code § DWD 272.12(2)(e)(1)(a)–(c) with 29 C.F.R.
§ 790.8(b)–(c)), aff’d, 587 F.3d 857 (7th Cir. 2009); Vang v. Kohler Co., No. 09-C-842, 2012 WL
2917788, at * 3 (E.D. Wis. Jul. 17, 2012), vacated on other grounds, 2012 WL 3689501 (7th Cir.
Aug 28, 2012)(“Wisconsin courts ‘look to federal cases discussing the FLSA and the corresponding
federal regulations’ for assistance in analyzing Wisconsin’s administrative regulations.” (quoting
Madely v. RadioShack Corp., 2007 WI App 244, ¶ 13, 306 Wis. 2d 312, 742 N.W.2d 559 (Ct. App.
2007)). As previously noted in my decision granting partial summary judgment in favor of the
defendant on Plaintiffs’ FLSA claim (ECF No. 427), federal case law has incorporated the language
of 29 C.F.R. § 790.8(c) n.65 into its determination of whether Steiner’s “integral and indispensable”
standard is met regarding preliminary or postliminary activity. See e.g., Bamonte v. City of Mesa,
598 F.3d 1217, 1223-25 (9th Cir. 2010); Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 910 (9th
Cir. 2004); Alvarez v. IBP, Inc., 339 F.3d 894, 903 (9th Cir. 2003); see also Steiner v. Mitchell, 350
U.S. 247, 249, 256 (1956).
The federal case law focuses the inquiry on whether the activity can be described as
“integral” and “indispensable,” both words which appear in § 790.8(c) and § DWD 272.12(2)(e)1.c.
There is no reason to believe that Wisconsin law will be interpreted any differently because
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Wisconsin courts will look to federal case law, incorporating footnote 65 of § 790.8 into its legal
standard for determining whether activity is “integral” and “indispensable.” See Munsh, No. 07cv-524-bbc, 2008 WL 4735171, at *6.
Plaintiffs rely upon Spoerle v. Kraft Foods Global, Inc., 614 F.3d 427 (7th Cir. 2010) for
the proposition that Wisconsin law requires time spent donning and doffing safety gear to be
compensated regardless of whether the time will be compensated under the FLSA. Plaintiffs
however mischaracterize Spoerle’s holding. Spoerle held that in situations where a Wisconsin
employer and employee collective bargaining agreement varied the FLSA rule requiring
compensation for donning and doffing time pursuant to 29 U.S.C. § 203(o), Wisconsin’s
requirement of compensation would prevail in spite of the collective bargaining agreement. Id. at
430. This is because Wisconsin law does not contain a similar provision to § 203(o) and Wisconsin
law is not preempted by the FLSA. See id. at 428–30. The Spoerle court noted that it was not
necessary to determine whether the FLSA would require compensation for time spent donning and
doffing safety gear because the appellant had already conceded that the time at issue was
compensable under Wisconsin’s standard. See id. at 429. The court did not analyze whether the
FLSA and Wisconsin law differ as we do here; therefore, Spoerle is inapposite to the facts of this
case.
Because Plaintiffs’ Wisconsin state law claims are construed under the same standard as the
FLSA, Plaintiffs claims cannot survive in light of this Court’s previous ruling on Plaintiffs’ FLSA
claim unless there are other countervailing considerations. (See ECF No. 427.) I find none here.
Accordingly, Plaintiffs’ state law claims will be dismissed with their FLSA claim.

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2. Clarification
Plaintiffs raise several additional issues in their Memorandum On The Viability Of
Wisconsin State Law Claims relating to the Court’s July 19, 2012 Decision granting defendant’s
motion for summary judgment that merit discussion. Plaintiffs suggest that in granting summary
judgment in favor of Waupaca on their FLSA claim, the Court ignored significant evidence in the
record that Waupaca itself had instructed employees to change their clothes and shower after work
wholly apart from warnings from third party manufacturers of chemicals and compounds used at
the foundry or warnings that were passed along pursuant to OSHA’s Hazard Communication
Standard. Plaintiffs also raise a concern over certain statements in the Court’s decision to the effect
that there is no evidence that the recommendations contained in MSDS “are supported by extensive
scientific research” or that “showering after work appreciably reduces the risk to human health that
otherwise exists at plants like Waupaca’s.” (July 19 Order, ECF No. 427, at 18, 19.) Plaintiffs note
that the issue the parties were instructed to address was the standard under the FLSA for
determining whether the nature of the work required changing clothes and showering, not what the
scientific evidence demonstrated. If given the chance, Plaintiffs contend, they are prepared to offer
the very scientific evidence the Court said was lacking. Indeed, Plaintiffs note that they already
submitted such evidence during the previous round of summary judgment motions.
As to the first issue concerning Waupaca’s own recommendations or instructions, I conclude
from the record before me that Waupaca does not have a policy or rule requiring its employees to
change clothes and shower at the work site. Its own recommendations or cautions do not amount
to a rule requiring its employees to change clothes and shower at the work site. The fact that
Waupaca, as well as others involved in workplace safety, believe that it is prudent for foundry
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workers to change clothes and shower at the work site and encourages its workers to do so, does not
mean it is necessary to do so. Eliminating even a minuscule risk to one’s health, or the health of
one’s family, may be prudent if the cost of doing so is simply changing one’s clothes and showering
before leaving work. But these types of activities are not compensable under the FLSA unless they
are “required by law, by rules of the employer, or by the nature of the work.” 29 C.F.R. § 790.8(c),
n. 65.

Waupaca’s recommendations and advice do not amount to a rule by the employer.
With respect to the Court’s comments about the absence of scientific evidence, Plaintiffs’

request for clarification is well-taken and the Court hereby withdraws those statements. Of course,
the question of whether changing clothes and showering appreciably reduces the health risks to
foundry workers was the central factual dispute between the parties following the Court’s initial
decision denying the parties’ cross motions for summary judgment. It was the time and expense
required to complete discovery over that issue and, as the Court explained, the sense that the issue
was not suited to litigation but required a regulatory response, that underlay the Court’s conclusion
that OSHA’s failure to order such precautions, despite its own history of dealing with the issue,
precluded a finding by the Court that the nature of the work required it. (July 19, 1012 Order, ECF
No. 427, at 17). The Court is not saying, however, that “scientific evidence of existing health risks
is never relevant under the FLSA or Wisconsin state law in the absence of certain OSHA laws.”
(Pl.s’ Mem., ECF No. 434, at 5.) But where, as here, the evidence is in sharp dispute as to whether
such precautions significantly reduce the health risks and OSHA has acted and adopted a regulatory
response that does not include changing clothes and showering on site, those activities cannot be
found to be required by the nature of the work as a matter of law.

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Accordingly, and for the reasons set forth above and in the Court’s July 19, 2012 Decision
and Order, Plaintiffs’ claims in their entirety are dismissed with prejudice. The Clerk is directed
to enter judgment in favor of the Defendant and against the Plaintiffs.
SO ORDERED this

5th

day of September, 2012.

s/ William C. Griesbach
William C. Griesbach
United States District Judge

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