Divided Seventh Circuit Panel Reverses Summary Judgment In Showering And Clothes Changing FLSA Case

On October 31, 2013, a Seventh Circuit panel decided, by a two to one vote,  to reverse a district court's decision granting summary judgment to the employer in a Fair Labor Standards Act (FLSA) collective action involving over 400 employees seeking overtime compensation for time spent at the work site showering and changing clothes.

In granting summary judgment to the employer in DeKeyser  v. Thyssenkrupp, the district court first held that activities were compensable "work" under the FLSA if the activities were required by law, by the employer, or by "the nature of the work." It then found that the first two elements were not satisfied because neither OSHA nor the employer had mandated that foundry workers shower and change clothes on-site. As to the third element, the district court found 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" and that the litigation