On October 30, 2013 in DeKeyser v. Thyssenkrupp Waupaca, Inc., the US Court of Appeals for the Seventh Circuit issued an opinion holding that time iron foundry workers spent donning and doffing and showering on-site may be compensable under the FLSA. The Seventh Circuit held that the absence of an OSHA standard requiring employees to shower and change does not bar the employees' claim for compensation for these activities. It further held that factual disputes about whether the donning and doffing and showering were required by the "nature of the work" precluded summary judgment.

In DeKeyser, a class of more than 400 employees sued their employer to recover overtime compensation for time spent showering and changing clothes on-site. The employees worked in an iron foundry. For their safety, the employer provided them with personal protective equipment, including hard hats, safety glasses, ear protection, steel-toed footwear and certain clothing. It also provided employees with on-site locker rooms and showers. The employees alleged that their employer required them to wear the protective equipment while working and recommended that employees use the employer-provided on-site locker rooms and showers to change and wash off the chemicals and dust they were exposed to on the job before leaving the foundry.

In evaluating whether the time spent showering and changing was compensable under the FLSA, the US District Court for the Eastern District of Wisconsin looked to the US Court of Appeals for the Ninth Circuit's decision in Ballaris v. Wacker Siltronic Corp., 370 F.3d 901 (9th Cir. 2004). Under the Ninth's Circuit's Ballaris test, employers must pay employees for activities mandated by:

The district court held:

The district court also concluded that the absence of an OSHA standard requiring employees to shower and change after exposure to the hazardous materials indicated that these activities were not required by the nature of the work and therefore were not compensable under the FLSA. Based on these findings, the district court granted summary judgment to the employer. The district court, however, noted the sharp dispute in the evidence regarding the benefits of showering and changing in reducing the health risks.

The Seventh Circuit overturned the district court's grant of summary judgment and remanded the case to resolve the factual disputes about the nature of the employees' work. Specifically, the Seventh Circuit:

Although the Seventh Circuit examined the district court's application of the Ballaris test, it specifically noted that it was not explicitly adopting that test for purposes of determining whether time spent donning and doffing is compensable under the FLSA.

Although the Seventh Circuit's decision in Sandifer v. U.S. Steel Corp. seemed to resolve many questions about the compensability of donning and doffing, its decision in DeKeyser shows that a number of these issues are still at play. The Seventh Circuit clarified that courts cannot draw a negative inference from the absence of an OSHA standard and that courts cannot avoid resolving factual disputes, even if they involve complex scientific issues. However, the Seventh Circuit specifically noted that it was not explicitly adopting the test articulated by the Ninth Circuit in Ballaris or articulating a different test for determining when donning and doffing is compensable under the FLSA.