                                 In the

     United States Court of Appeals
                   For the Seventh Circuit
No. 12-3306

RYAN DEKEYSER, et al., on behalf of
themselves and all others similarly
situated,
                                                  Plaintiff-Appellants,

                                   v.


THYSSENKRUPP WAUPACA, INC., d/b/a
Waupaca Foundry, Inc.,
                                                  Defendant-Appellee.

          Appeal from the United States District Court for the
                    Eastern District of Wisconsin.
            No. 08-C-488 — William C. Griesbach, Judge.


     ARGUED APRIL 25, 2013 — DECIDED OCTOBER 30, 2013


   Before MANION and KANNE, Circuit Judges and LEE, District
Judge*.




*
 The Honorable John Z. Lee, District Judge for the United States District
Court for the Northern District of Illinois, sitting by designation.
2                                                   No. 12-3306

   LEE, District Judge. Ryan DeKeyser, Thomas Cooper,
Harley Granius, and Carlos Lantz sued their employer,
Thyssenkrupp Waupaca, Inc. (“Waupaca”), an iron casting
manufacturer, alleging that Waupaca violated the Fair Labor
Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201 et seq., by not
paying them overtime compensation for time they spent
showering and changing clothes at Waupaca’s foundries. They
represent a class (an “opt-in” class under 29 U.S.C. § 216(b)) of
more than four hundred Waupaca foundry workers.
    The district court granted summary judgment in favor of
Waupaca, ruling that showering and changing clothes at
Waupaca was not compensable under the FLSA because the
Occupational Safety and Health Administration (“OSHA”), the
administrative agency within the Department of Labor
responsible for promulgating and enforcing occupational
safety and health standards, had not mandated that workers in
foundries like Waupaca’s shower and change clothes on-site.
The district court so ruled despite the fact that there was a
factual dispute in this case as to whether these activities
significantly reduced workers’ health risks at Waupaca.
Because OSHA’s decision not to promulgate a rule requiring
such activities does not bar a party from presenting evidence
as to the compensability of such activities under the FLSA and
factual disputes otherwise preclude summary judgment, we
reverse the district court’s grant of summary judgment and
remand for further proceedings.
                          BACKGROUND
    Waupaca manufactures iron castings used in the automo-
tive and other industries. For safety, Waupaca provides certain
No. 12-3306                                                      3

employees in its six foundries with personal protective
equipment (“PPE”), including hard hats, safety glasses, ear
protection, steel-toed footwear, and 100% cotton clothing or a
fire-retardant uniform. Waupaca requires these employees to
wear PPE while working, and failure to comply with
Waupaca’s safety standards can result in discipline. Waupaca
also provides employees with locker rooms equipped with
showers.
   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 environ-
ment, 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.
    Plaintiffs argue that Waupaca must pay them overtime
compensation for time spent showering and changing clothes
at the foundry because these activities constitute compensable
work under the FLSA. For its part, Waupaca moved for
summary judgment, and the district court ruled in its favor.
Plaintiffs appealed.
                          DISCUSSION
   We review the district court’s grant of summary judgment
de novo, taking the facts and all reasonable inferences in
Plaintiffs’ favor. See Schaefer-LaRose v. Eli Lilly & Co., 679 F.3d
560, 571 (7th Cir. 2012). Summary judgment is warranted when
4                                                                No. 12-3306

“the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c).
    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) (internal citation
omitted). The FLSA’s two core provisions—the minimum wage
provision and the overtime provision— require that employees
receive a minimum wage for each hour that they are
“employ[ed]” as well as a premium wage (one and one-half
times the regular rate of pay) for each hour they are
“employ[ed]” beyond forty hours in one work week. 29 U.S.C.
§§ 206(a), 207(a). The FLSA defines the term “employ” as “to
suffer or permit to work,” id. § 203(g), but the Act does not
define “work,” leaving a “critical hole that courts must fill.”
Sandifer v. United States Steel Corp., 678 F.3d 590, 592 (7th Cir.
2012), cert. granted, 133 S. Ct. 1240 (2013).
   Here, citing Department of Labor regulations and authority
from our sister circuits, the district court held that an em-
ployee’s activity constitutes compensable “work” under the
FLSA if such activities are required by law, by the employer, or
by the “nature of the work.”1

1
  In arriving at this tripartite test, the district court relied upon Ballaris v.
Wacker Siltronic Corp., 370 F.3d 901, 910 (9th Cir. 2004). Although we have
had occasion to address whether certain activities constitute compensable
“work” under the FLSA, we have not explicitly adopted the test espoused
by the Ninth Circuit. See, e.g., Kellar v. Summit Seating, Inc., 664 F.3d 169,
174-75 (7th Cir. 2011) (citing Dunlop v. City Elec., Inc., 527 F.2d 394, 398 (5th
Cir. 1976) and 29 C.F.R. § 790.8(c)); Musch v. Domtar Indus., Inc., 587 F.3d
                                                                   (continued...)
No. 12-3306                                                                   5

    Applying the test to the facts of the case, the district court
concluded that the appellants did not satisfy the first two
elements, holding that neither the law nor Waupaca required
employees to shower and change clothes on-site2. As for the
third element, the district court held 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.” Recognizing the burdensome nature of discovery
related to the health impacts of hazardous materials exposure
and the difficulty of attributing any negative health impacts to
an employee’s failure to shower and change clothes at
work—as compared to health impacts due to ordinary expo-
sure over the course of a typical workday—the district court
concluded that “the process of litigation is poorly suited to


1
  (...continued)
857, 859-61 (7th Cir. 2009); Pirant v. United States Postal Serv., 542 F.3d 202,
208-09 (7th Cir. 2008). Because the parties do not challenge the district
court’s use of this test on appeal, we need not decide that issue here.

2
   Plaintiffs argue that the district court erred in concluding that the
employees were not required to shower and change clothes on-site.
Although Plaintiffs acknowledge that Waupaca did not have a policy
expressly mandating such activities, Plaintiffs contend that the training and
instructions Waupaca provided about the hazards of the work environment
pressured employees into believing that such activities were required.
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. Thus, the district court’s finding was not erroneous.
6                                                    No. 12-3306

determining the practices and procedures that should be
mandated to protect worker health and safety in the workplace
on an industry-wide basis.”
    Instead, the district court held that Congress, in enacting
the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.,
intended OSHA to make such determinations through the
regulatory process. Accordingly, the district court concluded
that “the fact that OSHA has promulgated a standard for
[hazardous material] exposure that does not mandate changing
clothes and showering after work requires the conclusion that
such activities are not required by the nature of the work.” The
district court reached this conclusion despite what it would
later characterize as a “sharp dispute” in the evidence as to
whether changing clothes and showering actually reduced the
health risks at Waupaca. See DeKeyser v. Thyssenkrupp Waucapa,
Inc., Case No. 08–C–488, 2012 WL 3880886, at *4 (E.D. Wis.
Sept. 6, 2012.) This was error.
    First, 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 on-
site. In Illinois Power Co. v. OSHA Review Commission, OSHA
issued a citation and notification of penalty to an employer
after an employee was electrocuted and killed while working
on uncovered secondary voltage power lines. 632 F.2d 25, 26
(7th Cir. 1980). OSHA had not prescribed covering secondary
voltage lines, and the employer argued that this precluded the
citation and penalty. Id. at 27–29. We held that “we are not
entitled to draw, as the [employer] suggests we should, any
negative inference from the absence of any OSHA standard for
secondary voltages.” Id. at 29 (citing Nat’l Realty & Constr. Co.,
No. 12-3306                                                    7

Inc., v. Occupational Safety & Health Review Comm’n, 489 F.2d
1257, 1261 (D.C. Cir. 1973)).
    Second, 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. For example, in Musch v. Domtar Indus., Inc., paper mill
employees brought FLSA overtime compensation claims
against their employer for time they spent showering and
changing clothes at the mill after their work shifts. 587 F.3d at
858. There, we recognized that the parties had offered testi-
mony regarding the health impacts of exposure to certain
chemicals in the mill and considered the evidence when
determining the compensability of the activities under the
FLSA. Id. at 860–61.
    Finally, although we recognize that cases such as this may
implicate very difficult and complex scientific issues (on which
the parties, and their retained scientific experts, will often
disagree), courts cannot avoid discovery or expert testimony
simply because such discovery or testimony may be costly,
time consuming, or difficult to understand. See United States v.
Hall, 93 F.3d 1337, 1342–43 (7th Cir. 1996) (scientific evidence
can pose “difficulties” for courts, but courts must assess it
“whether it is hard to do or not”); United States v. Raszkiewicz,
169 F.3d 459, 465–66 (7th Cir. 1999) (“The particular question
posed here … is a hard one. This does not give us an excuse to
dodge the issue.”). Thus, the district court erred when it
ignored the “sharp dispute” in the evidence as to the health
effects of chemical exposure at Waupaca’s foundries and the
impact, if any, that showering and changing clothes would
8                                                 No. 12-3306

have on Waupaca workers and granted summary judgment in
the face of such factual disputes.
                          CONCLUSION
    For these reasons, we find that the district court erred in
granting summary judgment in Waupaca’s favor. We remand
this case for proceedings consistent with this opinion.
No. 12-3306                                                    9

   MANION, Circuit Judge, dissenting.
    I conclude that the district court did not err in granting
summary judgment in favor of the defendant, and for the
following reasons I respectfully dissent. Last year we decided
Sandifer v. U.S. Steel Corp., 678 F.3d 590 (7th Cir. 2012), cert.
granted in part, 133 S. Ct. 1240 (2013), where we held that
clothes-changing time was not compensable under the Fair
Labor Standards Act (FLSA) because the collective bargaining
agreement entered into by the union and the steelworkers in
that case precluded compensation for those activities. Id. at
591–92. Since there was an agreement between the union and
the covered U.S. Steel employees, there was no rule or regula-
tion affecting those activities. In the absence of a rule or
regulation, it was not necessary to reach the question of what
test a district court should apply to determine whether
donning, doffing, or showering are “integral and
indispensable” parts of employees’ activities or merely an
employee convenience. Id. at 596. With this question left
unresolved, the district court looked to the guidance of the
Ninth Circuit and, after a thorough analysis, granted summary
judgment to Waupaca. I would affirm the district court’s grant
of summary judgment.
    After extensive review and a second round of briefing, the
district court first concluded that “employee activities that are
in compliance with the hazard communication instructions
that OSHA requires employers to give its employees are not
for that reason alone compensable principal activities within
the meaning of the FLSA.” DeKeyser v. Thyssenkrupp Waupaca,
Inc., 2012 U.S. Dist. LEXIS 100193, at *5 (E.D. Wis., July 19,
2012). In other words, simply because OSHA required
10                                                     No. 12-3306

Waupaca to distribute informational materials about donning,
doffing, and showering to its employees, that ministerial
responsibility did not automatically make the actions covered
by the informational materials “principal activities” compensa-
ble under the FLSA. Looking beyond the OSHA regulations,
the district court concluded “that the legal standard applicable
to the disposition of this case is whether the donning, doffing,
and showering activities are required by (1) law, (2) the rules
of the employer, or (3) by the nature of the work.” Id. This
tripartite test is taken from Ballaris v. Wacker Siltronic Corp., 370
F.3d 901, 910 (9th Cir. 2004), and tracks 29 C.F.R. § 790.8(c) n.65
promulgated by the Secretary of Labor in 1947, the same year
the Portal-to-Portal Act became law. See IBP, Inc. v. Alvarez, 546
U.S. 21, 37 (2005); Steiner v. Mitchell, 350 U.S. 247, 256 (1956).
After applying the tripartite Ballaris test, the district court
concluded that “[t]he undisputed facts of the case reveal that
the activities at issue do not meet this standard and thus are
not ‘work’ under the FLSA. They therefore are not compensa-
ble.” Id. at *5–6.
    The district court made specific findings in support of its
conclusion. Regarding prong one, it determined that
“[p]laintiffs have not identified a statute or regulation requir-
ing foundry workers to change and shower at the work place.”
Id. at *11. Thus, the plaintiffs’ claims failed prong one of the
Ballaris test. “Nor have they presented evidence of an employer
rule or policy mandating that they do so.” Id. And so the
plaintiffs’ claims failed prong two of the Ballaris test. Under
prong three of the Ballaris test, the district court initially
“concluded that a factual dispute over whether the nature of
the work required the employees to don, doff, and shower at
No. 12-3306                                                             11

work precluded entry of summary judgment.”Id. at *20. The
district court then “concluded that a trial, or at least further
discovery, was needed.” Id. at *21. Discovery was subsequently
directed at the linchpin question undergirding this litigation:
does the “nature of the work” at Waupaca require changing and
showering at the work site such that these grooming activities
constitute “integral and indispensable” principal activities
within the meaning of the FLSA?
    After failing to locate an OSHA-imposed shower mandate
on foundry employees,1 the district court turned to the evi-
dence that the plaintiffs had assembled. Their primary sources
of evidence are material safety data sheets (MSDS) Waupaca
produced in discovery which list the physical characteristics
and hazards of each chemical, the symptoms caused by
overexposure, and any pre-existing medical conditions
aggravated by exposure. Id. at *8. The district court reviewed
these documents and concluded that they were not material to
the plaintiffs’ allegations because they dealt with unrelated
donning, doffing, or showering practices of employees who
engage in specialized work in parts of the foundry that are not
at issue in this litigation. Id. at *9-10. Another item produced in
discovery, issued as part of Waupaca’s OSHA-mandated




1
  My colleagues cite Illinois Power Co. v. OSHA Review Commission, 632 F.2d
25 (7th Cir. 1980) for the proposition that we are not permitted to draw an
adverse inference on agency silence. Maj. Op. at 6. However, the district
court did not grant summary judgment based on agency silence, but on the
absence of evidence in support of plaintiffs’ claims.
12                                                            No. 12-3306

HAZCOM program,2 states, in pertinent part, the following
recommendation for dealing with silica and lead dust (for-
mally known as cupola dust):
        After working in a dusty area, practice good
        personal hygiene by showering and leaving your
        uniform at work. Cupola dust poses no hazard
        from skin contact, but showering at work will
        prevent the material from being tracked into
        your car or home.3
Id. at *10. Plaintiffs argue that these MSDSs and related
HAZCOM memoranda prove that the “nature of the work” at
Waupaca (i.e., risks from dust exposure) caused OSHA to
compel employers to recommend that employees change
clothes and shower, entitling them to compensation under the
FLSA. Waupaca justifiably demurs. As the district court


2
   At oral argument, counsel for Waupaca clarified that HAZCOM is a
communication standard, not a conduct standard. In other words, because
Waupaca utilizes a variety of chemicals at its foundries, and because OSHA
requires that Waupaca make information about those chemicals available
to its employees (hence the reason Waupaca retains and makes MSDS data
sheets available in the first place), OSHA also requires that the information
made available be accurate. But OSHA does not require that MSDS-
distributing facilities implement the recommendations found in MSDS data
sheets.

3
  At oral argument, counsel for Waupaca represented that maintenance of
the dust referenced in this MSDS is handled by the melt department and
melt maintenance department, totaling 52 of the 484 plaintiffs. This
“personal hygiene” recommendation is something the company offered as
an optional benefit so an employee could clean up and avoid tracking the
“no hazard” cupola dust into his or her car or home.
No. 12-3306                                                    13

recognized, “[t]here is a difference … between requiring
employers to pass on information to employees about health
and safety precautions and recommendations and mandating
the recommended actions.” Id. at *29. Recommendations are
not requirements and the distinction is precise and consequen-
tial.
    No doubt, it would be ill-advised to ingest massive quanti-
ties of cupola dust. For that reason, Waupaca (in compliance
with OSHA) encourages foundry employees to minimize their
exposure. But the district court determined after years of
discovery that the MSDSs produced failed to create a genuine
issue of material fact over whether showering immediately
after work “appreciably reduces the risk to human health that
otherwise exists at foundries like Waupaca’s.” Id. at *31.
Ingestion of dust, if any, occurs during eight-hour shifts
working in dusty areas. Neither showers, nor compensation for
voluntary showering, mitigates that situation.
     The record indicates that Waupaca operates six foundries
and at oral argument counsel indicated that its foundries run
three shifts per day. If the FLSA compels overtime pay here,
Waupaca would either have to shut its lines down earlier to
squeeze these activities in under forty hours or pay overtime
at time-and-a-half to the employees for the easiest parts of their
work day. Plaintiffs’ counsel surmised that the overtime pay of
time-and-a-half would amount to about twenty minutes on
each end. A judgment in the plaintiffs’ favor would thus entitle
484 employees to be compensated for about forty minutes a
day, five days a week, for the three years immediately preced-
ing the complaint. Moving forward, this new standard would
14                                                     No. 12-3306

apply to some yet undetermined number of employees, three
shifts per day, in perpetuity until Waupaca ceases operations.
    If an employee is entitled to time-and-a-half for the 20
minutes it takes to put on whatever clothing and protective
equipment necessary before his shift begins, and another 20
minutes at the end of the shift to remove the clothing and take
a shower, it adds an extra 40 minutes to each 8-hour day. If, for
example, an employee makes $20 per hour, in an 8-hour day he
would earn $160.4 If that 40 minutes of overtime is added on at
what would then be $30 per hour for that additional 40
minutes at time-and-a-half, it would be another $20 for that
day. As a result, in addition to 40 hours of actual work time in
the foundry, there would be an extra 200 minutes or $100 at the
time-and-a-half rate for simply changing clothes and shower-
ing. Because every category of employee probably has a
somewhat different pay scale (presumably based on skill,
difficulty, seniority, etc.), there would have to be a significant
variation in the pay scales for the 484 employees. The example
of a $100 weekly increase for each of three shifts would vary
depending upon the employee’s base wage rate. Also, it
appears that there are some fraction of the employees that are
required to wear special equipment and clothing, and they
appear not to be counted in this particular class.
   The union in Sandifer did not challenge U.S. Steel’s formula.
As we pointed out, in Sandifer the FLSA permitted unions and
management to trade off the number of compensable hours


4
  I use $20 because it is an even number. No doubt many employees are
paid less or more per hour.
No. 12-3306                                                   15

against the wage rate. 678 F.3d at 594. Workers received more
dollars per hour in exchange for agreeing to exclude some time
from the base (which would include donning and doffing
clothes and protective equipment, even if required). Id.
Similarly, that is the only sensible solution in this case. Al-
though there is not a union here, there certainly could be a
formula for determining payment that would be added on for
employees who needed or chose to don, doff, and shower. One
suggestion would be adding on to the hourly wage something
significantly less than the wage rate for working in the foundry
itself. Perhaps something like $10 per hour for the additional
200 minutes per week could be factored in. As noted in
Sandifer, “the workers g[o]t more, per hour, in exchange for
agreeing to exclude some time from the base.” Id.
    The key distinction in this case is that there is no require-
ment for donning, doffing, or showering. It is totally optional.
Many employees take advantage of the convenience of having
a clean uniform every day and a shower after work. Others
choose to go home without either. Those who choose to go
home may not have a particularly dirty job that others in the
foundry may have. The punitive consequence in this case is
that the time-and-a-half for the donning and doffing overtime
goes back three years from the date of the complaint. No doubt
those who chose not to take a shower and change clothes at
home may conveniently remember that they did take a shower
most of the time. And certainly if this wage rate is imposed
with time-and-a-half, all the employees will arrive and don on-
16                                                           No. 12-3306

site, stay to doff after the shift ends, and take a shower even
though it is not required.5
    As in Sandifer, this kind of imposition of overtime retroac-
tively and prospectively would have a serious economic
impact on Waupaca. 678 F.3d at 594–95. If it does not put it out
of business outright, it could clearly affect the job availability
and would necessarily cause a reduction in wage rates per job.
Sandifer, 678 F.3d at 597 (“The higher such costs are, the lower
the hourly wage will be. And so the higher costs would be
borne ultimately by the workers.”). This is inevitable because
Waupaca has to make a profit and any measure of profit in
each division requires a wage that allows fair compensation
but also a reasonable profit so that the company can stay in
business and perhaps even grow and hire more people.
    Finally, it is necessary to emphasize that the district court’s
opinion was not a reaction to OSHA’s acquiescence. The
plaintiffs place great weight on the recommendations from
OSHA with regard to rules about certain chemicals as well as
other recommendations for practices in the workplace. The
district court simply reacted to those assertions and rejected
the insistence that those recommendations inevitably required
that the donning and doffing opportunity somehow morphed

5
  That could overcrowd the shower area, causing the company to shut
down the whole offer for everyone except those who Waupaca specifically
requires to put on special equipment. It is also pretty obvious that the
problem in the foundry is not being exposed to dangerous chemicals that
may spill on the employee. Rather, the building has dust and perhaps has
other irritating particles in the air. A shower at the end of the day is not
going to eliminate what could be a respiratory threat.
No. 12-3306                                                  17

into a requirement that mandated overtime compensation.
Clearly the district court recognized that this was a 24-hour
operation with three 8-hour shifts. This means that in order to
have a worker present at a work station for the full eight hours
for each shift there would be one employee donning and
another employee doffing for an additional 40 minutes at time-
and-a-half. The district court correctly pointed out this is not
the case where a judge or a jury should decide on how to run
the workplace and how to fix the problem by mandating time-
and-a-half overtime. Rather, the only sensible thing is for the
employees and Waupaca management to get together and set
pay scales where appropriate and in an amount that will be
compensable for an 8-hour workday that recognizes the
process but does not include the time it takes to don and doff
work clothes. The key here is that it is not a requirement and
therefore theoretically the company would have the option of
just closing down the shower. Maybe that would cause some
employees to quit. But paying time-and-a-half for the time it
takes to don and doff is not a solution for either the employees
or the foundry if the employees want to keep their jobs and the
foundry wants to stay in business. Simply put,“[i]f the workers
have a legal right to be paid for that time [donning, doffing,
and showering], the company will be less willing to pay them
a high wage for the time during which they are [working]; it
will push hard to reduce the hourly wage so that its overall
labor costs do not rise.” Sandifer, 678 F.3d at 594.
    In short, I think the district court correctly granted sum-
mary judgment to Waupaca. The complaint in this case was
filed well over five years ago. That means that a number of
employees have likely departed, including some of those
18                                                   No. 12-3306

covered within the three-year back pay period. Obviously
when this case is sent back to the district court on remand, that
three-year back pay period from the filing of the complaint
moves forward from the fixed beginning. It is understandable
why the district court recognized the futility of going on for
more years given the fact that the plaintiffs have already had
two chances to come up with new briefs and new discovery. It
is obvious the nature of the “work” of donning and doffing is
substantially less arduous than the work during the 8-hour
shift on the factory floor.
    In remanding this case I hope the interests of justice will be
served. Our decision in Sandifer fully examines the economic
reality of imposing overtime on a 24-hour (three shifts)
manufacturing operation. More tedious and expensive discov-
ery and conflicting expert testimony and ultimately a trial
should at least be preceded by a careful examination of a
formula that factors into a 40-hour wage rate a recognition of
the donning and doffing process that sufficiently benefits
certain employees without punishing the company. I don’t
think any back pay is warranted given the fact that the don-
ning and doffing was not required, and that among the 400 or
so employees the non-use or the varying frequency of use of
the donning and doffing process would be very difficult to
ascertain with each employee or former employee. Perhaps
some sort of bonus arrangement could be worked out. That
said, I recognize I am the minority and although I would affirm
No. 12-3306                                                                     19

the judgment of the district court, I do accept the court’s
decision as the final word.6




6
   Two of our sister circuits have disposed of similar suits brought by
individuals employed in similar professions on motions without requiring
trial. See, e.g, Franklin v. Kellogg Co., 619 F.3d 604 (6th Cir. 2010) (for the time
spent walking between the changing room and the time clock, donning and
doffing the uniform and equipment was both integral and indispensable to
the job … remanding for fact finding on other issues); Gorman v. Consolidated
Edison Corp., 488 F.3d 586, 593 (2d Cir. 2007) (donning and doffing is only
“integral and indispensable” to a principal activity when the principal
activity is performed in a lethal environment). But see Perez v. Mountaire
Farms, Inc., 650 F.3d 350, 363 (4th Cir. 2011) (donning and doffing protective
gear at the beginning and end of the employees work shifts were “integral
and indispensable” to chicken processing since these activities were
necessary to their work on the “production line” and primarily benefitted
the employer by sanitizing the employee and its clothing in order to avoid
contaminating the chicken).
