The opinion of the court was delivered by: Reagan, District Judge:
A. Introduction and Procedural Overview
Amsted Rail, Inc. ("Amsted") manufactures freight car and locomotive undercarriage components at a production facility in Granite City, Illinois, located within this Judicial District. In January 2010, two hourly-paid employees, both union members working at the Granite City plant (Chester Marshall and Richard Whitby), filed suit in this Court alleging that they and other similarly situated employees were entitled to recover unpaid wages and overtime compensation from Amsted under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. 201, et seq., and the Illinois Minimum Wage Law, 820 ILCS 105/1, et seq. On threshold review, the undersigned Judge confirmed that he enjoys subject matter jurisdiction under the federal question statute (28 U.S.C. 1331) via the FLSA allegations, and that supplemental jurisdiction covered the state-law claims (28 U.S.C. 1367(a)).
The original complaint named two Defendants (Amsted Industries, Inc. and Amsted Rail Company, Inc.) and listed 65 employees other than Marshall and Whitby who had opted into the lawsuit, as plaintiffs must to join an FLSA collective action. An Order partially granting a motion to dismiss or strike the complaint left only the FLSA claims.
An amended complaint and answer followed, and Amsted moved for conditional certification of a collective action. After extensive briefing and hearing, the undersigned Judge conditionally certified this case as a collective action under the FLSA and authorized notices to potential plaintiffs (current and former hourly employees of Amsted) under § 216(b) of the FLSA. Plaintiffs subsequently dismissed Amsted Industries, Inc., leaving Amsted Rail Company, Inc. as the sole Defendant herein.
At the November 2010 status conference, the undersigned Judge confirmed that the total number of Plaintiffs (then totaling 493) would be no greater than 494 and set trial for January 23, 2012 (Doc. 142). Magistrate Judge Stephen C. Williams granted a joint motion to extend the deadlines for disclosing and deposing expert witnesses (Doc. 151), and in June 2011, the undersigned Judge revised the schedule for dispositive motions to be filed and briefed (Doc. 169).*fn1
A motion for partial summary judgment, filed by Amsted May 26, 2011, with supplemental briefs filed through September 9, 2011, is now before the undersigned Judge. For the reasons explained below, the Court partially grants and partially denies Amsted's motion (Doc. 157).
B. Summary of Key Allegations/Arguments Amsted employs hundreds of hourly-paid workers at its Granite City facility. Amsted pays hourly employees based on their scheduled shift times, not on their actual hours worked. Plaintiffs allege that during the time period relevant to this lawsuit, Amsted required them to work before and after their paid shifts without compensation. The pre-shift work included putting on ("donning") a substantial amount of protective gear, obtaining tools and supplies, testing equipment, obtaining tool repairs or replacements, and organizing their work areas. The post-shift work included shutting down machinery, storing tools, cleaning work areas for the following day or shift, shoveling sand, blowing debris off themselves, and taking off ("doffing") a substantial amount of protective gear.
Plaintiffs maintain that these tasks are integral and indispensable to the performance of their assigned duties and merit compensation. They assert that Amsted willfully failed to pay wages and overtime compensation, while enjoying substantial ill-gained profits at the expense of the hourly-paid employees undertaking these tasks.*fn2
Plaintiffs seek to recover compensatory damages (the unpaid wages and overtime compensation), plus liquidated damages, attorney's fees and costs under § 16(b) of the FLSA, and pre-judgment and post-judgment interest.
The motion now before the Court focuses only on the protective gear (not the other tasks listed above, such as obtaining replacement tools or cleaning work areas). The amended complaint alleges that the protective gear includes fire-retardant and/or protective pants, fire-retardant and/or protective jackets, protective sleeves, hoods, helmets with shields, goggles, ear plugs, respirators, gloves, metatarsal boots, aprons, "and other protective clothing" (Doc. 80, p. 5).
Seeking partial summary judgment, Amsted advances two arguments:
(1) Plaintiffs' claims for compensation based on time spent donning and doffing personal protective equipment ("PPE") are barred by § 203(o) of FLSA, and
(2) because the time donning and doffing protective gear falls under § 203(o), it cannot constitute a "principal activity" under the FLSA as a matter of law.
Plaintiffs respond on several fronts. First, Plaintiffs suggest that Amsted's request for partial summary judgment is inappropriate, because they have no separate "claim" for time spent donning and doffing; rather they have a single claim under the FLSA for wages they were not paid. The Court finds this argument unpersuasive.
Next, Plaintiffs point out that although their workdays typically begin with donning PPE, most of that donning and doffing occurs outside the confines of when they clock in and clock out, and they seek to recover payment for the compensable tasks they perform within the period between clocking in and clocking out of work.*fn3
Put another way, Plaintiffs' damage calculation excludes time donning and doffing "outside the clock rings" (before clocking in and after clocking out), but they still believe that time is relevant, as follows. Plaintiffs maintain that to the extent this Court finds donning and doffing of PPE not compensable, those acts still are integral and indispensable to the employees' jobs and thus may start (and end) the compensable workday such that all tasks performed in between become compensable (Doc. 170, p. 2, p. 15). That is, "even if the donning and doffing of PPE is excluded from the definition of work under § 203(o) of the FLSA ., it nevertheless justifies Plaintiffs' use of the time clock punches to measure Plaintiffs' unpaid compensable time worked" (id.). Plaintiffs also contend that material fact issues remain regarding the application of § 203(o), precluding the grant of summary judgment on that basis.
Finally, emphasizing that Amsted listed § 203(o) as an affirmative defense in its answer to the amended complaint, Plaintiffs argue that once a defendant seeks summary judgment based on an affirmative defense, it shoulders the burden of establishing each element of that affirmative defense, i.e., Amsted must prove the application of "the narrow § 203(o) exclusion" and has failed to do so (Doc. 170, p. 11). In its reply brief, inter alia, Amsted insists that Plaintiffs have failed to recognize caselaw plainly revealing that Plaintiffs bear the burden of proving that § 203(o) does not apply to their claims (Doc. 173, p. 1). Analysis of Amsted's motion begins with reference to the applicable statutes, rules, and legal standards.
C. Standards Governing Motions for Summary Judgment In assessing Amsted's motion and the parties' supporting and opposing briefs, the Court is guided by the following standards. Federal Rule of Civil Procedure 56 governs summary judgment motions. Under Rule 56, summary judgment is appropriate where the pleadings, discovery materials, and any affidavits show that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ellis v. DHL Exp. Inc., 633 F.3d 522, 525 (7th Cir. 2011); Turner v. The Saloon, Ltd., 595 F.3d 679, 683 (7th Cir. 2010); Durable Mfg. Co. v. U.S. Dept. of Labor, 578 F.3d 497, 501 (7th Cir. 2009).
In ruling on a summary judgment motion, the district court must construe all facts in the light most favorable to, and draw all legitimate inferences in favor of, the non-moving party. Righi v. SMC Corp., 632 F.3d 404, 408 (7th Cir. 2011); Reget v. City of La Crosse, 595 F.3d 691 (7th Cir. 2010); National Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008).
When the non-moving party bears the burden of proof, he must demonstrate the existence of a genuine fact issue to defeat summary judgment. Reget, 595 F.3d at 695. To survive summary judgment, the non-movant must provide admissible evidence on which the jury or court could find in his favor. See Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir. 2008).
In deciding a summary judgment motion, the court may not evaluate the weight of the evidence, judge the credibility of witnesses, or determine the truth of the matter. The court's only role is to determine whether there is a genuine issue of triable fact. National Athletic, 528 F.3d at 512. As the Seventh Circuit Court of Appeals reiterated in December 2010: "There is no genuine issue of material fact when no reasonable jury could find in favor of the nonmoving party." Van Antwerp v. City of Peoria, Illinois, 627 F.3d 295, 297 (7th Cir. 2010), quoting Brewer v. Board of Trustees of the University of Illinois, 479 F.3d 908, 915 (7th Cir. 2007).
D. Analysis of Amsted's Motion for Partial Summary Judgment The FLSA mandates that employers pay overtime (one-and-a-half times the hourly wage) to employees who work more than 40 hours per week. Johnson v. Hix Wrecker Service, Inc., -- F.3d --, 2011 WL 2586284, *1 (7th Cir. July 1, 2011), citing 29 U.S.C. 207(a)(1). Stated another way, the FLSA "sets the standard workweek at 40 hours and requires employers to pay their non-exempt employees one and one-half times their regular rate of pay for any hours worked in excess of 40." Urnikis-Negro v. American Family Property Services, 616 F.3d 665, 666 (7th Cir. 2010), cert. denied, 131 S. Ct. 1484 (2011), citing 29 U.S.C. 207(a)(1). A brief detour into the legislative history of the FLSA sheds light on the provisions critical to the motion before this Court.
Enacted in 1938, the FLSA originally required employers engaged in the production of goods for commerce to pay their workers "not less than 25 cents an hour" and prohibited workweeks longer than 40 hours, unless the employee received compensation "at a rate not less than one and one-half times the regular rate" he received. IBP, Inc. v. Alvarez, 546 U.S. 21, 25 (2005). The statute itself did not define "work" or "workweek," but early United States Supreme Court cases defined the terms quite broadly, relying on the remedial purposes of the legislation. Id.
For example, in Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944), the Supreme Court clarified that "exertion" was not necessary for an activity to constitute work under the FLSA, since "an employer, if he chooses, may hire a man to do nothing but wait for something to happen." Similarly, in 1946, the United States Supreme Court held that the time employees spent donning aprons and overalls constituted "work" under the FLSA, and the time employees necessarily spent walking from the time clocks to their workstations must be treated as part of the "workweek." Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 691-92 (1946)(the workweek includes "all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed workplace..").
Congress responded in 1947 by passing the Portal-to-Portal Act, 29 U.S.C. 251-262. That amendment excluded from compensation (i.e., exempted employers from compensating employees for) time spent walking, riding, or traveling to and from the place they perform their principal activities and also exempted time engaging in "preliminary" or "postliminary" activities which occur before or after the employee engages in his "principal" activity. 29 U.S.C. 254(a). Another amendment to the FLSA followed in 1949, adding a section especially pertinent to the case at hand, the provision which became 29 U.S.C. 203(o), discussed below at length.
Other than these express exceptions (for travel to and from the place of the employee's "principal activity" and for activities preliminary or postliminary to that principal activity), the Portal-to-Portal Act did not alter the Supreme Court's interpretations of "work" and "workweek" or supply a different definition. IBP, 546 U.S. at 28. Consistent with those decisions interpreting the FLSA, the Department of Labor adopted a rule known as the "continuous workday rule," under which the workday is generally defined as the period between the commencement and completion (on the same workday) of the employee's principal activity or activities. 29 C.F.R. 790.6(b); quoted in IBP, 546 U.S. at 29.
All was not settled, though. Federal courts continued to confront questions regarding application of the FLSA. In 1955, the Supreme Court held that battery plant workers must be compensated under the FLSA for time incident to changing clothes at the start of their shift and showering at the end of their shift, because their work required them to extensively use caustic and toxic materials, and vital considerations of health and hygiene required them to change clothes and shower in facilities that state law mandated their employers to provide. Steiner v. Mitchell, 350 U.S. 247, 248 (1956). The Supreme Court has continued to stress that the term "principal activity or activities" from the Portal-to-Portal Act embraces all activities that are an "integral and indispensable part of the principal activities." IBP, 546 U.S. at 29, citing Steiner, 350 U.S. at 252-53.
So, not all work-related activities constitute "work" that must be compensated under the FLSA. Musch v. Domtar Industries, Inc., 587 F.3d 857, 859 (7th Cir. 2009). Employers are not required to pay employees for time they spend performing "preliminary" or "postliminary" 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 ...