Case Will Determine Whether Donning, Doffing Safety Gear Is Compensable

​Emphasizing that the proper test for whether oil rig employees should be paid for time spent changing in and out of protective clothing is whether changing is integral and indispensable to productive work, the 3rd U.S. Circuit Court of Appeals recently vacated summary judgment for an employer and sent the case to trial.

The employer, an oil company whose workers include rig hands who drill oil and gas, follows workplace safety regulations in requiring them to wear protective gear, including flame retardant coveralls, steel-toed boots, hard hats, safety glasses, gloves and ear plugs. Although rig hands face risks of fire, crushed toes, flying debris, electric shock and chemical exposure on the job, they are not paid for the time spent changing in and out of protective gear.

The rig hands, arguing they should be paid for the time spent changing in addition to the time spent walking from the changing house to safety meeting locations, sued the employer under the Fair Labor Standards Act.

The employer argued that changing into and out of protective gear is a preliminary and postliminary activity and thus not compensable under the Portal-to-Portal Act. The rig hands countered that donning and doffing gear is both integral and indispensable to what the parties agree is their principal activity: drilling for oil and gas.

The district court granted summary judgment to the employer, but the appeals court found the lower court had applied the wrong legal test.

Under the Portal-to-Portal Act, employers are not required to pay workers for activities that are preliminary or postliminary to the principal activity or activities for which they are employed. Several Supreme Court cases have found that a principal activity "embraces all activities that are an integral and indispensable part of the principal activities," the 3rd Circuit noted. Further, the Supreme Court has found that to be integral, a task must be intrinsic to the principal activity. "In short, a task is compensable work if it is both integral and indispensable to the principal activity, but not if it is pre- or postliminary to that activity," the appellate court clarified.

Although acknowledging the integral-and-indispensable inquiry is fact-intensive and not amenable to bright-line rules, the appellate court said trial courts should be guided in their inquiry by statutes and case law. The court offered three key factors that courts should consider in deciding when changing gear is integral to the principal activity:

• Location where workers change. The 3rd Circuit found the U.S. Department of Labor's rule stating that changing on the employer's premises is integral when it is required by law, by rules of the employer or by the nature of the work to be persuasive. "At bottom, the question is whether workers have a 'meaningful option' to change at home. … If they do not, changing is more likely to be integral to the work," the appellate court stated.
• Regulations. Noting that both the Supreme Court's rulings and the Labor Department's rule consider state regulations about changing clothes or gear, the appellate court said that existing regulations requiring the changing of clothes on the employer's premises would suggest that gear is integral.
• Type of gear. Courts should consider what kind of gear is required—by regulation, employers or the work's nature. Although the more specialized the gear, the more likely it is to be integral, "even generic gear can be intrinsic," the court said. Workplace safety gear requirements can also be probative of the question. In following the Occupational Safety and Health Administration's rule requiring employers to provide safety gear wherever necessary to protect employees from workplace hazards, the employer's choice to provide gear—and what type of gear to provide—links that gear to the work being done, the court said.

For an activity to be indispensable, Supreme Court precedent suggests that it need not be strictly necessary, just reasonably so, according to the 3rd Circuit. An activity is indispensable only when an employee could not dispense with it without impairing their ability to perform the principal activity safely and effectively, the court said.

The district court relied on the 2nd Circuit's approach, which focuses on whether protective gear guards against workplace dangers that accompany the employee's principal activities and transcend ordinary risks. However, the appeals court noted that it finds the extraordinary risk test too narrow and believes its own multifactor approach mirrors those of most of its sister circuits.

"The test is whether changing is integral and indispensable to our productive work," the 3rd Circuit said. "We can find out whether the gear is integral by looking at where we change, whether regulations or industry custom require changing into gear at work and how specialized the gear is. And whether the gear is indispensable depends on whether it is reasonably necessary for doing the work safely and well."

The district court used a test that strayed too far from these factors and genuine factual disputes existed for trial, the 3rd Circuit concluded.

Tyger v. Precision Drilling Corp., 3rd Cir., No. 22-1613 (Aug. 16, 2023).

Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.