DeKeyser et al v Thyssenkrupp Waupaca Inc

Filing 529

DECISION AND ORDER denying 521 Motion for Reconsideration signed by Chief Judge William C Griesbach on 3/9/2015. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

RYAN DEKEYSER, THOMAS COOPER,
HARLEY GRANIUS, AND CARLOS LOPEZ,
on behalf of themselves and others
similarly situated,
Plaintiffs,
v.

Case No. 08-C-0488

THYSSENKRUPP WAUPACA, INC.,
d/b/a Waupaca Foundry, Inc.,
Defendant.

DECISION AND ORDER DENYING MOTION FOR RECONSIDERATION

Defendant Waupaca Foundry, Inc. has requested this court reconsider its November 25, 2014
order in which the court ruled that in order for the plaintiffs to show changing clothes and showering
is “required by the nature of the work” at Waupaca’s foundries, Plaintiffs’ “must convince the finder
of fact that changing clothes and showering at work will significantly reduce the risk to the health
of the employee.” (ECF No. 504 at 9.) As explained below, the motion will be denied.
Waupaca contends that the standard above, which derives from the tripartite test utilized by
the Ninth Circuit in Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 910 (9th Cir. 2004), which
itself comes from regulations promulgated after enactment of the Portal-to-Portal Act, 29 U.S.C.
§ 254, is inconsistent with the Supreme Court’s December 9, 2014 decision in Integrity Staffing
Solutions, Inc. v. Busk, — U.S. —, 135 S. Ct. 513 (2014). In Integrity Staffing the Court held that
“an activity is integral and indispensable to the principal activities that an employee is employed to
perform—and thus compensable under the FLSA—if it is an intrinsic element of those activities [i.e.

integral] and one with which the employee cannot dispense if he is to perform his principal activities
[i.e. indispensable].” Id. at 519. Waupaca argues that Integrity Staffing has undermined the
continued viability of the tripartite test and the Integrity Staffing analysis of what it means for
something to be “integral and indispensable” to a worker’s principal activities must supplant the
tripartite test. According to Waupaca, under Integrity Staffing, “the Court must examine what
connection, if any, there is between the activities in issue, and the principal activities the workers are
employed to perform.” (ECF No. 522 at 11–12.) Waupaca argues because no such connection
exists in this case the court should dismiss the claims as a matter of law. Thus, Waupaca’s motion
is really more than one for reconsideration, since dismissal was not at issue before the court issued
the November 25, 2014 order. In any event, as I indicated at the December 23, 2014 telephone
status conference, I do not agree that Integrity Staffing changes the ultimate factual and legal issue
in this case.
In Integrity Staffing, the Court held that employees’ time spent waiting in line and
undergoing employer-mandated security screenings at the end of each workday was not
compensable. In so ruling, the court reversed the Ninth Circuit’s decision, which stated that
“postshift activities that would ordinarily be classified as noncompensable postliminary activities are
nevertheless compensable as integral and indispensable to an employee's principal activities if those
postshift activities are necessary to the principal work performed and done for the benefit of the
employer.” 135 S.Ct. at 516 (emphasis added). The Court noted that it “has consistently interpreted
‘the term ‘principal activity or activities’ [for purposes of compensability under the Portal-to-Portal
Act] [to] embrac[e] all activities which are an ‘integral and indispensable part of the principal
activities.’” Id. at 517 (quoting IBP, Inc. v. Alvarez, 546 U.S. 21, 29–30 (2005) and Steiner v.
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Mitchell, 350 U.S. 247, 252–53 (1956)). The Integrity Stafftng Court elaborated:
Our prior opinions used those words in their ordinary sense. The word “integral”
means “[b]elonging to or making up an integral whole; constituent, component;
spec[ifically ] necessary to the completeness or integrity of the whole; forming an
intrinsic portion or element, as distinguished from an adjunct or appendage.” And,
when used to describe a duty, “indispensable” means a duty “[t]hat cannot be
dispensed with, remitted, set aside, disregarded, or neglected.” An activity is
therefore integral and indispensable to the principal activities that an employee is
employed to perform if it is an intrinsic element of those activities and one with
which the employee cannot dispense if he is to perform his principal activities. As
we describe below, this definition, as applied in these circumstances, is consistent
with the Department of Labor's regulations.
Our precedents have identified several activities that satisfy this test. For example,
we have held compensable the time battery-plant employees spent showering and
changing clothes because the chemicals in the plant were “toxic to human beings”
and the employer conceded that “the clothes-changing and showering activities of the
employees [were] indispensable to the performance of their productive work and
integrally related thereto.” [Steiner, 350 U.S. at 249, 251]. And we have held
compensable the time meatpacker employees spent sharpening their knives because
dull knives would “slow down production” on the assembly line, “affect the
appearance of the meat as well as the quality of the hides,” “cause waste,” and lead
to “accidents.” By contrast, we have held noncompensable the time poultry-plant
employees spent waiting to don protective gear because such waiting was “two steps
removed from the productive activity on the assembly line.”
Id. 517–18 (citations omitted).
The Court applied these standards to the security screenings and held they were not principal
activities because the employer obviously did not employ its workers to undergo security screenings.
The Court also found the screenings were not “integral” because they were not an intrinsic element
of retrieving products from warehouse shelves or packing them for shipment (which were the
employees’ principal activities), and that the screenings were not “indispensable” because the
employer could have eliminated the screenings altogether without impairing the employees’ ability
to complete their work. Id. at 518. The Court also explained its rejection of the Ninth Circuit’s

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approach, which focused on whether the employer required a particular activity: “If the test could
be satisfied merely by the fact that an employer required an activity, it would sweep into ‘principal
activities’ the very activities that the Portal-to-Portal Act was designed to address.” Id. at 519.
Justice Sotomayor, joined by Justice Kagan, joined the Court’s opinion but wrote separately
“to explain [her] understanding of the standards the Court applies.” Id. at 520 (Sotomayor, J.,
concurring). Justice Sotomayor noted:
[T]he Court confirms that compensable “ ‘principal’ ” activities “ ‘includ[e] ... those
closely related activities which are indispensable to [a principal activity's]
performance,’ ” and holds that the required security screenings here were not
“integral and indispensable” to another principal activity the employees were
employed to perform. I agree. As both Department of Labor regulations and our
precedent make clear, an activity is “indispensable” to another, principal activity only
when an employee could not dispense with it without impairing his ability to
perform the principal activity safely and effectively. Thus, although a battery plant
worker might, for example, perform his principal activities without donning proper
protective gear, he could not do so safely, [citing Steiner]; likewise, a butcher might
be able to cut meat without having sharpened his knives, but he could not do so
effectively[.]
Id. at 519–20 (Sotomayor, J., concurring) (citations omitted) (emphasis added).
There is no question that the principles discussed in Integrity Staffing apply to this case. The
Supreme Court is interpreting the same statutory provisions, regulatory framework and body of
Supreme Court case law, including Steiner, as this court and the parties have been since this case
started. It is also true that Integrity Staffing provides significant guidance to applying the “integral
and indispensable” language the Court first articulated in Steiner. Integrity Staffing clarifies that
these words each mean different things—as set forth above, “integral” is akin to intrinsically related
to and “indispensable” akin to necessary. It is for this reason that determining compensability solely
on the basis of whether an employer requires an activity is wrong; such an analysis ignores the

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requirement that the activity be integral or intrinsically related to what the employer hired the
workers to do. Likewise, “[a] test that turns on whether the activity is for the benefit of the
employer is similarly overbroad.” Id. at 519.
At the same time, Integrity Staffing did not relate to employee health and safety. So much
is clear from the facts of the case, but the concurring opinion highlights that extrapolating the
Court’s reasoning to hold as non-compensable activities that are indispensable/necessary for
employees to do their jobs safely would not be warranted. It would also run contrary to Steiner and
the applicable regulations the Integrity Staffing Court discussed. In effect, as was true when this
case began, what was conceded by the employer in Steiner is at issue here: is changing and
showering at work integral and indispensable to the employee’s productive work? This court has
provided a narrower, more specific standard in an effort to assist the parties in determining,
essentially, how indispensable a health and safety precaution must be to bring a case within the ambit
of Steiner such that the time is compensable notwithstanding the Portal-to-Portal Act. The standard
is that the changing and showering is integral and indispensable if “required by the nature of the
work”—in other words, if “changing clothes and showering at work will significantly reduce the risk
to the health of the employee.” (ECF No. 504 at 9.)
It is therefore ordered that Waupaca’s motion for reconsideration is denied.
Dated at Green Bay, Wisconsin this 9th day of March, 2015.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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