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7th Circuit Finds That Time Spent Showering and Changing if Required Due to Workplace Dangers is Work Time Requiring Compensation


Some jobs involve more inherent risk than others. Due to the nature of certain jobs, employees sometimes have to deal with hazardous materials or work with heavy machinery. In those cases, employers often require these workers to wear protective gear while on the job. The question of whether the time employees spend changing into and out of that protective gear should be paid for by the employer is a question which has been much debated throughout the country.

Recently, four employees have filed a class action wage and hour lawsuit against their employer, Thyssenkrupp Waupaca, Inc., for allegedly violating the federal Fair Labor Standards Act (FLSA). Waupaca is an iron castings manufacturer and it provides certain employees with personal protective equipment (“PPE”) and requires the employees to wear this equipment while working. The PPE includes hard hats, safety glasses, ear protection, steel-toed footwear, and 100% cotton clothing or flame retardant clothing. According to the lawsuit, failure to wear any or all of these items while at work could result in disciplinary action.

Waupaca also provides employees with locker rooms which include showers. Because some of the employees deal with hazardous chemicals as part of their work, Waupaca encourages them to shower and change out of their PPE before leaving work. Not all employees choose to do so. Some leave in their work clothes and change at home. All employees are required to clock out before changing out of their PPE.

The lawsuit alleges that the time workers spend changing into and out of their PPE should be compensated by the employer. Waupaca moved for summary judgment against the class action lawsuit and the district court ruled in the company’s favor. The plaintiffs appealed and the 7th Circuit Court of Appeals reversed the lower court’s ruling.
The FLSA was enacted by Congress to ensure that employees were provided with “[a] fair day’s pay for a fair day’s work.” The FLSA has two core provisions: the minimum wage provision and the overtime provision. The minimum wage provision ensures that all employees are paid no less than a certain hourly rate for the work that they perform. The overtime provision entitles employees to one and one-half times their normal rate of pay for each hour that they work in excess of eight hours a day or forty hours a week. The FLSA defines “employ” as “to suffer or permit to work”. However, it does not define “work”, leaving courts to determine which activities are compensable and which are not.

The Department of Labor defines compensable activities as those which are required by law, by the employer, or by “the nature of the work”. The case of Waupaca employees clearly does not meet the first two requirements. As to the third requirement, the district court ruled 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 district court acknowledged that the “discovery related to the health impacts of hazardous materials exposure and the difficulty of attributing any negative health impacts to the employees’ failure to shower and change clothes at work” would be too burdensome for a court to handle.

The appellate court agreed that such discovery would not be easy, but rejected the conclusion that the level of difficulty of the discovery was a sufficient basis for dismissing the case. The 7th Circuit Court of Appeals therefore reversed the lower court’s ruling and remanded the case for further proceedings.

The Chicago overtime lawyers at the Chicago Overtime Law Center are investigating potential unpaid overtime claims against large corporations, franchisors and manufacturing companies for failure to pay for work breaks and all work hours including for showering and changing if required by the employer or work conditions. We are also investigating claims for non-management employees for misclassifying employees as managers, erasing or altering time sheets or time records, failing to pay for breaks, pressuring workers not to report or record overtime, and otherwise failing to pay workers for overtime and other wages. If you are the victim this practice call us at (312) 869-4095 or contact us online.

The Illinois overtime attorneys at the Chicago Overtime Law Center have decades of experience fighting for wage earner’s rights. We have a team of overtime attorneys who focus on nationwide class action lawsuits and work out of Chicago and Oak Brook offices and prosecute claims for workers all over the Chicago area including Joliet and Aurora. We protect unpaid workers who haven’t received overtime throughout the Chicago area including in DuPage, Kane and Cook Counties.

Our Elmhurst and Glenview overtime lawyers are intimately familiar with the issues that arise during wage claim litigation, and we know the laws that govern overtime cases well. Many employers misclassify employees as being exempt from overtime laws and pay workers salaries instead of hourly wages in order to avoid paying them overtime. Some employers mistakenly classify employees as exempt and others intentionally do so in order to circumvent the law. In either case, workers do not receive the wages they should, and a lawsuit may be the only way to recover their earned wages.

The Chicago Overtime Law Center is based in Chicago, and represents clients throughout the country who have not been paid for the overtime hours that they worked. If you believe that you are owed overtime wages, contact one of our Chicago class action attorneys by phone at (312) 869-4095 or through our online form.