The Third Circuit Defines When Changing into Protective Gear is Compensable Under the FLSA

The Third Circuit Court of Appeals recently ruled that the time spent by oil rig workers changing into and out of protective gear is compensable under the Fair Labor Standards Act (FLSA). The court held that the compensability of this time depends on a multi-factor test, and rejected a standard that pegs compensability on whether the clothing guards against dangers that “transcend ordinary risks.”

The case, Tyger v. Precision Drilling Corp., involved a group of oil rig workers who sued their employer for unpaid wages. The workers alleged that they were not compensated for the time they spent changing into and out of protective gear, such as flame-retardant coveralls, steel-toed boots, and hard hats.

The district court granted summary judgment to the employer, finding that the time spent changing was not compensable under the FLSA. The district court applied the Second Circuit’s test for determining whether changing into protective gear is compensable, which asks whether the protective gear is meant to protect against dangers that “transcend ordinary risks.” The district court found that the risks in this case were “ordinary, hypothetical, or isolated,” and as a result, held that changing into protective gear was not integral or indispensable to oil drilling.

The Third Circuit reversed the district court’s decision. The court rejected the Second Circuit’s test in favor of a multifactor test. The Third Circuit’s test considers the following factors:

• Location: Where does the changing typically take place? If the changing takes place at the worksite and there is no “meaningful option” for workers to change at home, then “changing is more likely to be integral to the work.”
• Regulations: Are there specific regulations that mandate the use of protective gear? If so, then changing into the gear is more likely to be integral to the worker’s principal activity.
• Type of gear: How specialized is the gear? The more specialized the gear, the more likely changing in and out of it is integral. However, even “generic gear” can be intrinsic to workers’ principal activity and should not be categorically ruled out.
• Indispensability: Is the employee unable to safely and effectively perform the work without changing into the gear? If so, then changing into the gear is indispensable.

The Third Circuit emphasized that this is a fact-intensive inquiry, and that no single factor is determinative. The court also noted that the de minimis doctrine may apply, which means that workers do not need to be paid for time spent changing into protective gear if the activity takes only a few minutes.

The Third Circuit’s decision is a victory for workers who are entitled to be paid for all of the time they work, including the time they spend changing into and out of protective gear.

Takeaways for Employees

The Third Circuit’s decision provides some important takeaways:

• The time spent by employees changing into and out of protective gear may be compensable under the FLSA.
• The compensability of this time depends on a multifactor test.
• No single factor is determinative.
• The de minimis doctrine may apply.

Here are some additional examples that might be compensable donning and doffing, depending on the factors listed above.

• Nurses changing into scrubs and putting on gloves, masks, and hairnets before entering a patient’s room.
• Firefighters putting on turnout gear, including helmets, coats, pants, boots, and gloves, before responding to a fire.
• Hazmat workers putting on specialized suits and respirators before entering a hazardous materials environment.
• Factory workers putting on safety goggles, earplugs, and respirators before operating machinery.

These are just a few examples, and the compensability of donning and doffing time will vary depending on the specific facts of each case. However, the Third Circuit’s decision in Tyger v. Precision Drilling Corp. makes it clear that the time spent changing into and out of protective gear is more likely to be compensable if it takes place at the worksite, is required by regulations, and is necessary to protect the employee from safety hazards.

It is important to note that the de minimis doctrine may still apply, even if the time spent changing into and out of protective gear is compensable. The de minimis doctrine means that employers are not required to pay for time that is so short that it is considered to be insignificant. The amount of time that is considered de minimis will vary depending on the specific circumstances, but it is generally considered to be a few minutes.

If you are an employee who is required to change into and out of protective gear, you should speak to an attorney to discuss your rights. The Kennedy Law Firm can help you determine whether the time you spend changing is compensable and, if so, how much compensation you are entitled to.