Employees Not Entitled to Compensation for Showering Time After Shift


Our Illinois overtime rights lawyers were interested to see a recent ruling on unpaid overtime from the Seventh U.S. Circuit Court of Appeals. In Musch v. Domtar Industries, No. 08-4305 (7th Cir. Nov. 25, 2009), Alan Musch and his colleagues were maintenance workers at two Wisconsin paper mills owned by Domtar Industries. In their lawsuit, they say their job routinely exposes them to dangerous chemicals, requiring them to put on special protective gear before shifts and to shower and change after. They are not paid for the time it takes to do those things, however. They sued for unpaid overtime pay for the showering and changing time, as well as for time spent shaving, a requirement under Domtar company policy.

After the case was filed, Domtar moved for summary judgment dismissing the case. It argued that company policy says workers should shower and change immediately after exposure to a hazardous chemical, even if that means the employee goes into overtime. Because it has that policy, the company argued, overtime compensation was inappropriate. The district court agreed and granted summary judgment for Domtar. After the court declined to reconsider, the plaintiffs appealed both rulings. They argued that the district court missed or ignored evidence showing that chemicals actually were on workers’ skin; that is, they do not shower because they merely think they might have the chemicals. Thus, changing and showering time is appropriate for overtime pay under the Fair Labor Standards Act.

In its analysis, the Seventh Circuit started by noting that the FLSA and Wisconsin law both require employers to pay for all of the work employees do. However, federal law makes a distinction between work and preliminary or postliminary activities. Changing and washing is ordinarily considered preliminary or postliminary, the court wrote, but may sometimes be considered part of the job if it’s “integral” and “indispensable” to the job. The plaintiffs argued evidence showed that they didn’t always realize there were chemicals on their skin until the end of shifts, meaning showering after shifts would be following the company’s stated policy.

The Seventh Circuit disagreed. The plaintiffs’ evidence showed that showers were sometimes necessary, it wrote, but not that the Domtar policy of showering after any exposure was insufficient. Furthermore, the court said, employees admitted to bringing work clothes home to wash them, suggesting that they don’t believe the chemical exposure is that serious. Finally, employees are free to seek overtime under the existing company policy when they are required to shower and change, the Seventh said. Because these are all “normal conditions” under the meaning of the FLSA, the post-shift changing and showering is postliminary activity, not an essential job requirement, the court wrote. Thus, it upheld the trial court’s orders.

Based in Chicago and Oak Brook, Ill., Lubin Austermuehle represents workers around Illinois, Wisconsin and the United States who believe they aren’t getting the overtime to which they are legally entitled. As the Seventh Circuit noted, workers are legally entitled to be paid for all of the time they spend working — and time and a half for all of their time over 40 hours in a week. However, employers don’t always respect these laws because overtime can get expensive. Unscrupulous employers routinely break the law by shaving time from timecards, requiring employees to work off the clock, misclassifying them as managers and more. Our Wheaton, Naperville, Evanston, Waukegan, Joliet, Aurora and Chicago workers’ rights and wage claim attorneys help clients recover months or years of unpaid overtime and demonstrate that they know their rights.

If you believe your employer has been breaking the law by withholding your overtime pay, you should call the Chicago wage and hour lawyers at Lubin Austermuehle. To learn more about your legal options and discuss your case, you can call us toll-free at 630-333-0333 or send us an email.

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