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DeKeyser v. Thyssenkrupp Waupaca, Inc.

United States Court of Appeals, Seventh Circuit

October 30, 2013

Ryan DeKeyser, et al., on behalf of themselves and all others similarly situated, Plaintiff-Appellants,
Thyssenkrupp Waupaca, Inc., d/b/a Waupaca Foundry, Inc., Defendant-Appellee.

Argued April 25, 2013

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 08-c-488 — William C. Griesbach, Judge.

Before Manion and Kanne, Circuit Judges and Lee, District Judge [*].

Lee, District Judge.

Ryan DeKeyser, Thomas Cooper, Harley Granius, and Carlos Lantz sued their employer, Thyssenkrupp Waupaca, Inc. ("Waupaca"), an iron casting manufacturer, alleging that Waupaca violated the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 201 et seq., by not paying them overtime compensation for time they spent showering and changing clothes at Waupaca's foundries. They represent a class (an "opt-in" class under 29 U.S.C. § 216(b)) of more than four hundred Waupaca foundry workers.

The district court granted summary judgment in favor of Waupaca, ruling that showering and changing clothes at Waupaca was not compensable under the FLSA because the Occupational Safety and Health Administration ("OSHA"), the administrative agency within the Department of Labor responsible for promulgating and enforcing occupational safety and health standards, had not mandated that workers in foundries like Waupaca's shower and change clothes on-site. The district court so ruled despite the fact that there was a factual dispute in this case as to whether these activities significantly reduced workers' health risks at Waupaca. Because OSHA's decision not to promulgate a rule requiring such activities does not bar a party from presenting evidence as to the compensability of such activities under the FLSA and factual disputes otherwise preclude summary judgment, we reverse the district court's grant of summary judgment and remand for further proceedings.


Waupaca manufactures iron castings used in the automotive and other industries. For safety, Waupaca provides certain employees in its six foundries with personal protective equipment ("PPE"), including hard hats, safety glasses, ear protection, steel-toed footwear, and 100% cotton clothing or a fire-retardant uniform. Waupaca requires these employees to wear PPE while working, and failure to comply with Waupaca's safety standards can result in discipline. Waupaca also provides employees with locker rooms equipped with showers.

Typically, when foundry workers finish their shift making iron castings, they first clock out and proceed to Waupaca locker rooms, where they remove their uniforms and PPE, shower, and change into street clothes. Waupaca trains its employees about the hazards of the Waupaca work environment, including those associated with certain chemicals and dust to which some workers are exposed, and recommends that employees shower and remove their uniforms and PPE on-site. However, not all employees do so; some leave the foundry wearing their uniforms.

Plaintiffs argue that Waupaca must pay them overtime compensation for time spent showering and changing clothes at the foundry because these activities constitute compensable work under the FLSA. For its part, Waupaca moved for summary judgment, and the district court ruled in its favor. Plaintiffs appealed.


We review the district court's grant of summary judgment de novo, taking the facts and all reasonable inferences in Plaintiffs' favor. See Schaefer-LaRose v. Eli Lilly & Co., 679 F.3d 560, 571 (7th Cir. 2012). Summary judgment is warranted when "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(c).

In 1938, Congress enacted the FLSA to provide employees "[a] fair day's pay for a fair day's work." Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981) (internal citation omitted). The FLSA's two core provisions—the minimum wage provision and the overtime provision— require that employees receive a minimum wage for each hour that they are "employ[ed]" as well as a premium wage (one and one-half times the regular rate of pay) for each hour they are "employ[ed]" beyond forty hours in one work week. 29 U.S.C. §§ 206(a), 207(a). The FLSA defines the term "employ" as "to suffer or permit to work, " id. § 203(g), but the Act does not define "work, " leaving a "critical hole that courts must fill." Sandifer v. United States Steel Corp., 678 F.3d 590, 592 (7th Cir. 2012), cert. granted, 133 S.Ct. 1240 (2013).

Here, citing Department of Labor regulations and authority from our sister circuits, the district court held that an employee's activity constitutes compensable "work" under the FLSA if such activities are required by law, by the ...

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