Should workers be on the clock for ’safety showers’?
December 7, 2009 by Fred HosierPosted in: Chemical safety, Special Report, What do you think?, new court decision
Workers sue to be compensated for the time spent changing clothes and showering at the end of each work shift. Do they win? You be the judge.
Maintenance workers at two paper mills owned by Domtar Industries claimed their clothes, skin and hair were regularly exposed to hazardous chemicals such as calcium oxide (aka lime dust).
To reduce exposure to these chemicals, the workers shower and change after their shifts. They usually aren’t compensated for this time.
The workers filed claims for overtime under the federal Fair Labor Standards Act (FLSA).
Domtar said it has a policy that requires employees who’ve been exposed to a hazardous chemical to immediately remove any affected clothing and wash the area. The company pays employees for the time spent changing clothes and showering when they have definitely been exposed to a hazardous chemical. If that time is after their regular shift ends, they are paid OT.
However, Domtar refused to pay for time showering just because employees might have been exposed.
The U.S. Supreme Court ruled in the Alvarez case that an employee can be compensated for washing up or changing clothes if those activities are “integral” and “indispensable” to the worker’s job.
To support their argument, the employees noted:
- the potential for them to get lime dust on their work clothing and skin
- occasions when an employee was unaware that chemicals were on him until he got home, and
- times when there has been a delayed reaction to being exposed to chemicals.
The Decision
The court threw out the lawsuit. Reason: The court said the employees’ claims were based on their speculation that they may have hazardous chemicals on their skin. Their argument failed because it was based on speculation and not on evidence. It didn’t pass the “integral” and “indispensable” test set up by the Supreme Court.
What do you think about the court’s ruling? Let us know in the Comments Box below.
Cite: Musch v. Domtar Industries, U.S. Circuit Crt. 7, No. 08-4305, 11/25/09. Download opinion here (PDF).
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Tags: chemical exposure, hazardous chemicals, pay for changing clothes
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December 7th, 2009 at 9:58 pm
The policy of my company is that employess have 30 minutes in which to shower and and change clothes.
This is included in their shift.
In today’s time, this small item should not be overlooked.
They always have this even if OT is required.
Bill
December 8th, 2009 at 7:48 am
I guess I am missing something…”The company pays employees for the time spent changing clothes and showering. If that time is after their regular shift ends, they are paid OT.” so the company policy is to pay them, but was not paying them, and the court says no proof. Doesnt the company policy count for something? And why is the exposure occuring? Shouldn’t they wear hooded anti-c suits to limit the contact with the hazardous material? sounds fishy to me. When I worked in a clean room environment we were paid an extra hour per shift to cover our suit up time and de suit time so it would not subtract off our actual break time. If its part of the SOP then its part of the job.
December 8th, 2009 at 8:38 am
I agree.
December 8th, 2009 at 8:58 am
It sounds to me like the company’s policy would cover the scope of the employees problem. I think if the workers have an exposure or a potential to be exposed to harmful materils that their clean-up should be compensated.
December 8th, 2009 at 9:12 am
Regardlss of the ruling, the employees should be given the benefit of the doubt about cemical being on their clothing and skin. After all they are going home to thier families, an if indeed they have chemicals on their clothing and skin, then exposure to the family is likely. Of course a test could settle the matter to prove whether or not chemicals are on their clothing and skin. Once one test is done, then the ‘evidence” would require busness employers to pay for the emplyees shower time, etc.
December 8th, 2009 at 10:00 am
Editor’s note: I just clarified the story from the way it was originally posted. Domtar paid for time showering when there was definite evidence that an employee was exposed to a hazardous chemicals. It did not want to pay for showers just because employees MIGHT have been exposed.
December 8th, 2009 at 10:06 am
In my opinion, time should be allowed for showering and changing within the shift. It’s just good safety practice. If the company chooses to focus on profit instead of safety, they will never be as successful as they could be. A perceived danger can be as hazardous as the visible one. Education of the hazard may be in order too.
December 8th, 2009 at 10:12 am
Our folks are required to shower after their shift, so everyone gets paid for 30 minutes doffing/donning/shower time. Once worn to work, uniforms also stay here for laundry service - no home laundry.
We made the decision based upon the concern that not only could there be delayed reaction, but the thought that whatever may be on an employee’s uniform/skin could be carried home to their children, spouse, furniture, etc. Some decisions need to be made simply because it’s the right thing - legal obligation or not.
December 8th, 2009 at 10:13 am
Question: how do they determine if an employee is “definitely” exposed? This is the usual merry-go-round between companies and the employees in regards to “possible” safety issues. If I were in charge of the company, I would set policy to have ANYONE that could be POTENTIALLY be exposed take the shower and pay them for it. This would cover the company for any future lawsuites and put the responsibility on the employees for their own safety. I think they would need to set a time limit for the de-suiting and showing though, to keep people from taking advantage of that time.
December 8th, 2009 at 10:28 am
I think the Supreme Court hit it on the nose. The company is providing a convenience by giving them a shower room. The exposure potetntial is covered when the iincidnet occurs. The shower after each shift is a choice made by the worker and not a requirment of the company. Some of the other comments is why America is losing jobs because this would be a huge non-productive expense without any obvious benefit to the employees. In fact, if the company offered the pay for showering, they only change would be a cleaner workforce because everyone would want to be on the clock for a shower to get the overtime. Any one exposed needs to report it to supervisors so it can be recorded and taken care of.
December 8th, 2009 at 10:39 am
If the employees are so concerned that they would take the time to shower after their shift, my question would be do they continue to wear the same work clothing each day, and do they bring their work clothes home to be washed with other clothing.
I would be more concerned whether the company is providing disposable suites.
December 8th, 2009 at 10:44 am
It sounds to me like people were abusing the policy and wanting to get paid by claiming they thought they may have been exposed.
The company might have been paying at first but the situation was getting out of hand with personnel that wouldn’t ordinarily be exposed.
December 8th, 2009 at 10:48 am
When I worked in military pharmacy we had hazardous drugs that required us to clean our areas and wash our hands after counting or handling the product. We got paid while on the clock to wash our hands. We got paid while on the clock to clean our areas and equipment. I don’t see why this is any different. If the shower is there because it is highly probable a person can become contaminated. Why will an organization pay to have their equipment and property cleaned but not the employee? Is a seasoned well trained employee not as valuable a resource? If you don’t want to pay overtime then have employees do this as the last 10 or 15 minutes of their duty day. No one is going to take an hour long shower and at the same time you are contributing to the safety of this employees family, pets, and the community as a whole.
December 8th, 2009 at 11:19 am
When reading this article their are three words that stand out to me and they are ( aka Lime Dust )now as everyone knows DUST floats around in the air, so not only are the employee’s that are working with this chemical at more than a Definate Risk but any and all other employee’s in the area are at risk. This company should have a set alotment of time for showering and cleanup for everyone’s safty, and yes it should BE PAID.
December 8th, 2009 at 11:49 am
Eliminate/control the hazard with engineering, administrative, and or PPER and the showers will not be an issue.
December 8th, 2009 at 12:28 pm
To Doug:
How is it a convinence? These are employees that have the possibility to be exposed to a hazardous chemical as part of their daily routine. It’s not a shower for hygenic purposes, it’s to remove a hazardous residue that they might come in contact with on the job. You’re thinking of this from the wrong angle sir. It is a productive expense because it eliminates the potential for a lawsuit. Law suits aren’t cheap either, but it appears that they got lucky this time. In a litigious society sometimes it makes more sense to write a few dollars off the top instead of taking the chance of loosing millions in a lawsuit.
December 8th, 2009 at 1:33 pm
Rob Ex GI Joe,
I don’t mean you any disrespect because I served 11 years in the military but your example isn’t a very good one because in the military you’re on monthly salary and you get paid the same whether you’re working or not every month. NO OT and no pay cut unless you get busted from non-judicial punishment.
December 8th, 2009 at 1:46 pm
I think any good employer would want their employees to wash off any potential hazardous materials to prevent bringing it home to their families. Whether it is a definite or potential exposure. It is not like they are just washing off sweat and they are asking to be paid to wash up so they are fresh & clean when they go home.
Put regulations in place only 15-30 minutes is paid for showering and changing, etc. Or as someone said before, eliminate the hazard. It should be one or the other.
December 8th, 2009 at 2:10 pm
I agree with the court. The proof is on the employees. Either they were exposed or not exposed, thee is no inbetween.
December 8th, 2009 at 6:55 pm
Of course! I wouldn’t eat at a restaurant that wouldn’t allow it’s employees to wash their hands….Would anyone like to stand behind or walk behind an employee that just got off work that didn’t shower? …actually,The company should be suppling over clothes
December 9th, 2009 at 9:57 am
I agree with Jason and DPG.
December 9th, 2009 at 10:07 am
The courts have it right. I would imagine the compnys has PPE and if worn properly will protect the workers. If they have an obvious exposure, it should be taken care of immeditely not after work. If they want to clean up after work that’s their choice and should not be compensated for that.
December 9th, 2009 at 10:51 am
Ok would it make any difference in my example if I said the “civilian contractors” who earned an “hourly wage” were paid while on the clock to wash “their” hands. “The civilian contractors” got paid while on the clock to clean “their” areas and equipment. Now that the salaried vs hourly contention is out the window we can focus on the actual issue. Pay the people their dues and set up a policy to ensure compliance, enhance safety, and minimize mishaps. The end…
December 9th, 2009 at 11:17 am
A basic policy should be that anyone working in an area where there is a possibility of a negative exposure to dangerous dust and gasses should be given PPE(personal protective equipment) and the shower time provided at the end of the shift. The area needs to be kept clean to avoid a build-up of dusts vapors and possible cross contamination in particular when some of the items are known to be reactive.
In the case of possibly dangerous dust are OSHA approved masks, protective suits and impervious gloves should be supplied. The staff should be trained in the use of PPE and supervisors should to enforce PPE use. The OSHA mandate is the PPE must be supplied and must be used.
If the shift ends at 4:00pm the employee should be ready to shower at 3:30pm.
It is always better safe than sorry. Once someone is damaged be it a temporary illness/injury or more serious injury/illness the damage is done and can have a fatal result, this I have seen personally. In addition in the manner of possibly dangerous residues being taken home can cause severe medical problems with medically compromised family members, something else I have had a personal experience with.
What about engineering controls on the air exchange in these areas?
Has the environment been tested for dust and chemicals that can be dangerous to people. If there are items in this category what is the exposure threshold for these items? What is the frequency of the testing if there
December 9th, 2009 at 12:21 pm
The difference is when you know you have been exposed that you are allowed to shower and change. If someone says they “might” have been exposed, that is the difference. I also agree with the court. When you are done with a shift of and shower and change because you potentially had exposure to a chemical you should not be paid for it.
December 9th, 2009 at 1:34 pm
I am confused on how the court or anyone could see this as a preference of the employee. Not the judge or most people would want to “potentially” bring disease or any type of hazard home to their families, so why should these people. It there is a potential then there should be a some sort of solution. If they worked at another mill or warehouse where there was no exposure there would be no need for this, so in my eyes, and to a majority of the people commenting here, it is part of the job at this specific mill. Anything that is part of your job or is necessary to be done for your job should be paid. If the concern is paying OT for showering, cut the shift short at 7.5 hours and let them shower.
December 9th, 2009 at 2:05 pm
I think if you are definateley exposed you should be able to shower on the clock. Wouldn’t these people be showering after work anyway? I agree with the court decision. They mayy have been exposed but then again maybe they didn’t. Seems silly to me
December 9th, 2009 at 3:36 pm
If the workers are exposed to hazardous chemicals and are expected to leave their clothes behind the parent company want to pay the extra time now rather than deal with a class action law suit down the road.
December 9th, 2009 at 7:27 pm
If the court made a decision as “speculation” not “evidence” then by all means, the claims are not legitimate. Whoever did the homeworks for the employees must be forgotten something very important, you can not win a case if there is no specific evidence or you can win the case based on “speculation”.
The way I am looking at this case is that the company had already done their homeworks. If there was absolutely hazardous chemical on their uniform, then they would have paid the workers for safety shower daily.
However, they should inlcude the 15 minutes to change their uniform at the end of the shift into their clock. It is a practice in many places that they allow employees to sign out 15 minutes earlier to change their uniform at the end of the shift.
December 10th, 2009 at 10:51 am
It seems to me it is irresponsible on the companies part to not back they’re workers and are opening themselves up for a larger lawsuit later down the road by allowing worker (even if they only suspect) who have been exposed to hazardous chemicals to leave the site and expose family and others they my come into contact with, at minimum they should allow employees to shower prior to they’re shifts end as a safety or even a morale obligation.
December 10th, 2009 at 11:10 am
It sounds to me that the employees were not properly prepared for their date in court. If they were to have brought the contaminated clothing to court, it would have proven whether they were exposed or not. I am sure that not every one is exposed every day, but this is dust we are talking about. How much is too much?
Did the company have industrial hygenist reports to show that the employees were safe? Companys have the burden to prove that they are using processes that provide the minumum amount of protection. The Safety Department should be able to provide some sort of document to reassure the employees about the exposure limits, and what the company is doing to protect its employees. If the company has fulfilled its oblagation to provide a work place free of hazards to its employees as per OSHA there sould not be a problem.
December 10th, 2009 at 11:19 am
Kevin,
We are going through hard economic times and companies have to watch the costs. One of the biggest expenses a company deals with is wages. Employees are in the habit of wasting time on company’s time. People taking showers on company’s time when they are only claiming to have maybe come in contact is probably being abused and the company wants to cut that out.
I can bet that most of the employees there are saying to themselves, “Why go home to take a shower, when I can get paid to take one at work?”
“Why are you taking a shower?”
“Oh Well, because I think I might have gotten exposed.”
Management was probably seeing a lot of people taking showers, whose job description didn’t require them risking exposure.
December 10th, 2009 at 11:54 am
The courts got it right this time. The issue was maybe, maybe not exposed. The company protects those who HAVE been exposed. I am sure that the company provide PPE is provided to EVERYONE. Where accidential exposure has occured, showers are permitted on company time. Where the possibility can not be proven, there is no need to permit showers, on company time. I like what Doug Gessford said. Also read Fred Hosier (Editor’s report) said.
December 10th, 2009 at 11:57 am
This is just goofy. I suspect this company is one that relies on paper as evidence of a safety program, as long as it is checked off or written down - the employees are safe. These are hard economic times, but a company is accountable to protect employees. Do the right thing, as a number of respondents have shown in their narratives above. If the employee has the potential to be exposed during his workday, alot a time for him/her to clean up at the end of the day. If that is 20 minutes, 30 minutes, etc, and monitor them to ensure the use their PPE correctly during the day. Do it by job description or position by assessing potential exposure. All employees may not have potential exposure. Our company does not care if it is required by law, it is the right thing to do…
December 16th, 2009 at 5:47 pm
I disagree with the ruling. Years ago workers at numerous types of jobsites were exposed to asbestos (not though to be harmful at the time). They would bring tthose work clothes home
to be washed. This process subsequently killed not only many of those workers, it also killed many of their spouse and their children.To what extent of exposure did each of these workers have? I,m sure that the exposure levels varied from day to day during each employees time of service. This ruling seems to be history repeating itself.
December 22nd, 2009 at 8:37 pm
I was the one who started this lawsuite. I will try to set the facts straight. We are maintenance workers. We work on all pumps, pipes and tanks that handle these chemicals. A short list of the hazardous chem. lime dust coal dust, chlorine dioxide, sodium chlorate. caustics, acids. and fumes
It has never been a matter of wether our work clothing becomes contaminated but contminated with what at any given time. Our work clothing is our first line of defense, the type and degree of contamination dictates the type of ppe we will wear. Due to heat stress, bulky suites, and vision impairment these are only worn in exterme conditions. transfer from pipes and machinery, our work clothing can handle but over the course of a shift it becomes contaminated. At times we change clothes during our shift. in the old days we took our clothing home now we rent clothing instead of contaminating our homes. Lime dust is six in. deep on the beams try droping a hamer and see what happens. If during the shift we shower or change clothes what do you think we just sit around the rest of the day, get grip on reality. If anyone thinks takeing a shower in a papermill is a convienance let me get in your car with my work clothes on and shower at your place. Then have your wife wash them. Now lets not forget this is wisconsin, company first workers safety second.
December 23rd, 2009 at 10:13 am
Then if your clothes are contaminated during each shift it should be fairly simple to have witnesses observe you working, then packaging and shipping clothes for chemical analysis comparison. With those results you have a case. We didn’t have all the details to formulate an opinion but if your version of facts is correct, you can still take this organizatino to court. Just make sure you become informed about how to gather required evidence to prove your point. The burden of proof doesn’t rely on the defendant so the organization is not going to volunteer to do a damn thing. However, since the burden of proof falls on you then do what you must to properly identify and prove your exposure.
December 23rd, 2009 at 11:43 pm
Saftey king, who is going to listen, I went to osha ,they called the comapany (never did a on sight inspection) the company replied with that they had all the ppe required for to comply with osha regulations. osha then dropped the issue and said if we chose not to wear the ppe their is nothing that can be done. My reply was to have him read oshas regulations on work clothing. He got pissed. I told him we work in extreme conditions, a tyvex suite is a paper suite best suited, but it tears and after twenty min. your close to heat stoke. The best choice is still work clothing we change and shower at the end of the shift, the companys position is we can wear street clothes to work and home. The same is with acid and caustic when brakeing into a line we wear full chemical suites. Then when we do the maintanace work we do it in our work clothes, the acid or caustic is weak after wash up on the equipment but still after a shift it builds up. This is why we can not bring it home. This was all brought out in depositions but the judge took a few things out of contex and made her whole motion on that. She basicaly called us liars and we did not prove these hazourds are present. Times are tough, workers saftey is at the bottom of the list.
December 29th, 2009 at 9:14 am
At issue here is the courts’ finding that decontamination after possible or even likely exposure to a hazardous substance does not rise to the standard of “integral” or “indispensable” when it comes to employee compensation. Under the findings of this ruling, it is only when there is a known exposure to a hazardous chemical that decontamination becomes “integral” or “indispensable.”
I am far from comfortable with that finding. It fails to protect any of the parties to this suit. Neither the employer nor the employee is protected from any undetected exposures.
Here’s what an MSDS for calcium oxide states:
Very hazardous in case of skin contact (irritant), of eye contact (irritant), of ingestion, of inhalation. Hazardous in case of skin contact (corrosive, permeator), of eye contact (corrosive). The amount of tissue damage depends on length of contact. Eye contact can result in corneal damage or blindness. Skin contact can produce inflammation and blistering. Inhalation of dust will produce irritation to gastro-intestinal or respiratory tract, characterized by burning, sneezing and coughing. Severe over-exposure can produce lung damage, choking, unconsciousness or death. Inflammation of the eye is characterized by redness, watering, and itching. Skin inflammation is characterized by itching, scaling, reddening, or, occasionally, blistering.
The most critical part of this is the section that reads “The amount of tissue damage depends on length of contact.” Without seeing first hand the working conditions within the facility, it is difficult to assess the liklihood of daily (undetected) exposure. If that exposure is likely, then the courts are wrong and set a dangerous precedent for other exposures. If that exposure is unlikely, then they may be correct in their ruling.
April 11th, 2010 at 9:50 pm
Where I work we are exposed to Rock dust, insulation, grease, new and used oils from 10wt to gear oils, brake cleaner, spray paints and brake fluid. We don’t get paid for showers at the end of the day. They provide uniform shirts and pants and I leave them at work and change when I arrive and leave. we do not get paid for changing into the work clothes either. Sometimes we work on machinery that customers bring in and we have no idea what they might have on them.