Changing Gear: The Third Circuit Adopts A Multi-Factor Test for Determining When Donning/Doffing Are Compensable Under the FLSA
By: Samuel E. Howie
Employers have long struggled with the issue of whether time spent by employees changing into and out of protective gear (donning and doffing) is compensable under the Fair Labor Standards Act (FLSA). The Third Circuit Court of Appeals, which covers New Jersey, Pennsylvania and Delaware, recently ruled in Tyger v. Precision Drilling Corp. that such time is compensable if it is "integral and indispensable" to the productive work that the employee is required to perform. The Court directed that it is appropriate to consider factors such as the location of the gear changing, relevant regulations, the type of gear required, and whether the gear is reasonably necessary for the job.
This case concerned oil-rig workers who were seeking compensation for their time spent changing in and out of flame-retardant coveralls, steel-toed boots, hard hats, safety glasses, gloves, and earplugs. The workers argued that changing is indispensable to the activities for which they are employed: drilling for oil and gas. On the flip side, their employer argued that changing is "preliminary to or postliminary to" their activities.
The U.S. District Court for the Middle District of Pennsylvania borrowed a gear-changing test from the Second Circuit Court of Appeals, which asks "whether the gear ... guards against 'workplace dangers' that accompany the employee's principal activities and 'transcend ordinary risks.'" The District Court found that the risks were de minimis, and therefore, that the oil-rig workers need not be paid for changing gear.
The Third Circuit reversed. It held that as "at least some gear changing is integral and indispensable" to productive work, fact-sensitive inquiries are required to determine whether work is compensable. It explained that courts should consider factors like the location of the gear changing, relevant regulations, the type of gear required, and whether the gear is reasonably necessary for the job. Specifically, it is necessary to consider:
1. Location: Whether the workers have a "meaningful option" to change at home
2. Regulations: Whether the changing is required by law
3. Type of Gear: Whether the gear is required by regulation, employers, or the work's nature
4. Indispensability: Whether the gear is reasonably necessary for the worker to perform the work
The Court found that there were genuine factual disputes in the case at hand, and thus, remanded it to the District Court.
Going forward, employers in the Third Circuit whose employees wear protective gear should consider Tyger's multi-factor test in determining when to compensate their employees for donning and doffing. Employers who fail to consider the factors may expose themselves to civil liability.
It is recommended that employers review their policies and practices regarding compensation for such activities. The attorneys in Lewis Brisbois’ New York/New Jersey Labor & Employment Practice are available to assist should you have any questions. You can also subscribe to this blog to receive email alerts whenever there is a new post.