Should Foundry Workers Be Paid for Decontamination Time?

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By Jon Steingart

Foundry workers in Wisconsin who say they should be paid for time spent undergoing decontamination at the end of their shifts can pursue their claims as a class action, a federal appeals court ruled ( DeKeyser v. ThyssenKrupp Waupaca, Inc. , 2017 BL 214027, 7th Cir., No. 16-2159, 6/22/17 ).

The compensability of time spent before or after a shift on a task that is related to the work is a frequent subject of litigation. In 2014, for example, the U.S. Supreme Court ruled that pickers at an Amazon.com warehouse needn’t be paid for time spent in end-of-shift security screenings because it wasn’t “integral and indispensable” to the job. The U.S. Court of Appeals for the Ninth Circuit is scheduled to hear oral argument next month in a case against Apple Inc. in which retail store employees say that under California law, they should be paid for security screenings.

ThyssenKrupp Waupaca Inc., which operates under the name Waupaca Foundry Inc., said the workers’ claims don’t satisfy a requirement for class certification. The claims vary from worker to worker because of the range of health status and potential exposure to “foundry dust,” the company said. This means the level of analysis required would be too individualized to conduct on a classwide basis, it said.

But the workers met their burden to win conditional certification, Judge Richard A. Posner wrote June 22 for the Seventh Circuit, joined by Judges Daniel A. Manion and Michael S. Kanne. The company’s argument rested on the assumption that some workers shouldn’t be paid because they don’t benefit from decontamination, but it failed to identify any such workers, Posner wrote. To the contrary, he said, an industrial hygienist hired by the workers determined that every person working in the foundry would benefit from decontamination.

‘Nature of the Work’ to Be Analyzed

This is the case’s second time in appeals court. The Seventh Circuit in 2013 reversed a judge’s determination that the Fair Labor Standards Act didn’t require the company to pay for decontamination time. It said analyzing “the nature of the work” performed at the foundry would determine whether decontamination was an integral and indispensable activity.

The workers would be able to prevail if they can show “that changing clothes and showering at work will significantly reduce the risk to the health of the employee,” the judge said after the workers won the earlier reversal.

There were more than 4,000 eligible class members at the four foundries in Wisconsin covered by the lawsuit, the workers estimated. They initially wanted to include workers in Tennessee and Indiana, but those portions of the lawsuit were transferred to federal courts in those states.

T. Joseph Snodgrass and Kelly Lelo with Larson King LLP in St. Paul, Minn., and J. Gordon Rudd Jr. with Zimmerman Reed PLLP in Minneapolis represented the workers.

Paul Benson, Mitchell Quick, Joseph Olson, and Benjamin Kaplan with Michael Best & Friedrich LLP in Milwaukee represented Waupaca Foundry.

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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