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September 20, 2023
The Fair Labor Standards Act (FLSA) establishes minimum wages and overtime rates for work. The U.S. Supreme Court has interpreted “work” broadly, but not all work is compensable. A task is compensable work if it is both integral and indispensable to the principal activity (the productive work that an employee is employed to perform), but not compensable if it is pre- or postliminary to that activity.
The U.S. Court of Appeals for the Third Circuit recently considered under what circumstances changing into and out of (donning and doffing) protective gear is compensable work. Tyger v. Precision Drilling Corp., No. 22-1613 (3d Cir., Aug. 16, 2023).
Background of the Case
Precision Drilling (Precision) is an oil company that employs rig hands to drill oil and gas. In light of safety regulations, the company requires rig hands to wear protective gear like flame-retardant coveralls, steel-toed boots, hard hats, safety glasses, gloves, and earplugs. Precision does not compensate the rig hands for the time spent donning and doffing the protective gear. The rig hands claim that such tasks are compensable because they are both integral and indispensable to their principal activity – drilling for oil and gas. Precision argues that donning and doffing protective gear are preliminary and postliminary activities and, therefore, are not compensable.
The U.S. District Court for the Middle District of Pennsylvania ruled in favor of Precision. In doing so, the district court adopted the “extraordinary risk test” of the U.S. Court of Appeals for the Second Circuit for determining whether donning and doffing gear is compensable. That test looks at whether the gear “guards against workplace dangers that accompany the employee’s principal activities and transcend ordinary risks.” The district court held that the workplace dangers relevant to the rig hands were “ordinary, hypothetical, or isolated” and that the gear’s protection was “incomplete.” Thus, the court ruled that donning and doffing the protective gear was not integral or indispensable to the principal activity of oil drilling.
On appeal, the Third Circuit vacated the district court’s decision, holding that the integral-and-indispensable inquiry is fact-intensive and not amenable to bright-line rules, and that the “extraordinary risk test” is too narrow. The Court identified three factors that are relevant to this inquiry:
The Third Circuit then noted that an activity is indispensable only when an employee could not dispense with it without impairing his ability to perform the principal activity safely and effectively.
These factors created genuine issues of material fact for a jury to decide.
Employer Takeaways
To avoid civil liability under the FLSA and state wage-and-hour laws, employers must engage in a fact-specific inquiry to determine whether donning and doffing gear is compensable.
As the Third Circuit in Tyger noted, the de minimis doctrine should alleviate any fears that the Third Circuit’s approach is too broad. Under that doctrine, when an activity concerns only a few seconds or minutes of work beyond scheduled working hours, it may be disregarded as compensable work time under the FLSA. But employers beware: some states, like Pennsylvania, do not recognize the de minimis doctrine, which can lead to exposure on state wage-and-hour claims.
This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice. Always consult an attorney with specific legal issues.
