Overtime, Wage and Hour Attorney Answers: “Should I get paid for safety work before or after my shift?” “Does my boss have to pay me overtime?” “I am being paid right?”
The Fair Labor Standards Act (“FLSA”) requires that employers pay their employees at a rate equal to or greater than the federal minimum wage. Additionally, the FLSA requires employers to pay most employees time-and-a-half for any hours worked beyond 40 hours per week, or what is typically called overtime. 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). Although the law seems to be a pretty straight forward, hammering out exactly what “work” is covered is sometimes is a tricky matter.
Take for instance the case of DeKeyser v. Thyssenkrupp Waupaca, Inc. which involves employees at Waupaca Foundry, Inc., who believe that their employer should pay them for showering and changing their clothes at the end of their shift. Yes—you read that right—the employees want to be compensated by their employer for a shower! But it’s not as simple as it sounds. Waupaca manufactures iron castings and the manufacturing process exposes employees to harmful chemicals and dust particles made out of silica and lead. It is for this reason that Waupaca provides its employees with protective gear and actually encourages their employees to shower before heading home. The employee’s process was described by the court as follows:
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.
The court found that the proper guidance to follow for determining what “work” really means indicates that an employee should be compensated for any activity that is:
1. Required by law;
2. Required by the employer; or
3. Required by the nature of the work.
However, in this case there was nothing indicating that the employees were required by law to shower after their shifts, or that Waupaca required them to shower, merely that the foundry recommended that they shower after a shift. Both the trial and appellate courts found that Waupaca stayed away from making any requirements of its employees:
Plaintiffs, however, have presented no training or instructional materials that mandated – as opposed to simply recommended – that the employees shower and change clothes on-site, and many of them left the foundry at the end of their shift without doing so. Plaintiffs also have offered no evidence that any Waupaca employees were disciplined for not showering and changing clothes before they left the workplace, even when pressed to do so at oral argument.
But the court would not let Waupaca off the hook that easy. Instead it gave serious question to whether the nature of the work and exposure to chemicals and dust required the employees to shower. To fight this argument, the employer pointed to a lack of any OSHA requirement. But the court rejected this argument: “we cannot, as the district court did, draw any negative inferences from the absence of an OSHA standard requiring Waupaca foundry workers to shower and change clothes onsite.”
The court of appeals then found trial court erred in not considering the expert hired to testify by the employees’ overtime attorneys: “courts cannot ignore, as the district court did here, factual evidence and expert testimony offered by the parties to establish the compensability of an activity under the FLSA. Such evidence is frequently offered and considered in such cases.”
Based on the above, the appellate court reversed the dismissal of the employee’s overtime claims and allowed the employees to continue pursuing their wage and hour claims, which means that Waupaca should seriously reconsider their stance on the issue.
This is just one more example where employees made the right call and consulted employment attorneys regarding their right to be compensated for their hard work. Let’s face it, employees agree to give up their most valuable commodity – their precious time – for their employer, and because of that, they should be compensated fairly. If two courts cannot agree on what the proper course is, most employees should at least get some input from an experienced overtime, wage and hour attorney.
If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Fair Labor Standards Act, contact the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. Or maybe you are being misclassified as an independent contractor. The wage and hour lawyers at Spitz, The Employee’s Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.
The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.