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Recently, the Third Circuit Court of Appeals analyzed when donning and doffing activities will be compensable under the Fair Labor Standards Act (“FLSA”). Tyger v. Precision Drilling Corp., 78 F.4th 587 (3d Cir. 2023).
In Tyger, a group of oil rig hands filed a collective action against their employer, Precision Drilling Corp., alleging that the donning and doffing of required personal protective equipment was compensable and Precision Drilling’s failure to compensate for that time was a violation of the FLSA. Precision Drilling filed for Summary Judgment, arguing that such activities are preliminary and postliminary to the principal activities and are not compensable under the Portal-to-Portal Act. The Middle District granted summary judgment for Precision Drilling.
On appeal, the Third Circuit Court of Appeals rejected the Middle District’s ruling and crafted a multi-factor analysis contemplating the integrality and indispensability of the relevant gear, and considering the location where workers change, the regulations surrounding the gear, and the type of gear required. As a result, employers must now consider certain aspects of their employees’ responsibilities to determine whether work gear is “integral and indispensable” to the employees’ work and whether doffing and donning must be compensated.
Per the Third Circuit’s ruling, employers must consider three key factors for determining whether changing gear is integral to employment: (1) the location where workers change; (2) the regulations covering changing or the PPE itself; and (3) the type of gear required.
For “location,” the Third Circuit found that whether the changing takes place before or after workers cross the threshold of their employment is a relevant consideration in determining the compensability of donning and doffing, and something employers must consider. Further, the Third Circuit noted that even if some workers opt to change offsite, changing may still be integral if it is done “regularly” by the “vast majority” of employees. Ultimately, employers must consider whether workers have a “meaningful option” to change at home.
For “regulation,” the Third Circuit looked to The Department of Labor, which emphasizes the integrality of donning and doffing PPE when required by law. As such, the Third Circuit found that regulations, especially regulations tailored toward the specific gear or the specific type of employment, suggest that the PPE in question is integral and must be considered by an employer.
For “required gear,” the Third Circuit included the type of gear required by law, by employers, or by the work’s nature. The more PPE is specialized for the hazards of employment, the more likely it will be considered integral by a court. Even “generic” gear can qualify, and the gear at issue need not be “unique” or “unusual.” The Third Circuit refused to define the outer bounds of this factor, referencing the Department of Labor’s concession that “a barista putting on a visor and apron would be much closer to the line of not integral.”
The Third Circuit then turned to its understanding of indispensability, finding that indispensable gear need only be “reasonably necessary.” An activity will be found indispensable only when an employee could not perform their principal activity safely and effectively without it.
The Third Circuit installed safeguards to ensure that the time for changing into the gear in question is not so small as to require only a few seconds or minutes of work beyond scheduled working hours. The Court maintained that the FLSA requires compensating workers only when they “give up a substantial measure of their time and effort.”
The decision in Tyger provides direct guidance from the Third Circuit and the considerations employers should make before requiring employees to suit up for work. However, employers should remain guided by the FLSA and the Portal-to-Portal Act as they encounter the effects of Tyger.
The attorneys at Freeman Mathis & Gary, LLP are highly skilled at defending labor and employment claims, especially claims concerning the Federal Labor Standards Act and the Portal-to-Portal Act. FMG Attorneys Justin Boron, Nicole DuGan, and Edward Pozo may be contacted further for any questions or comment.