When should employees be paid for putting on safety gear?

A recent court decision on a “donning and doffing” case involving oil rig workers will make employers more vulnerable to Fair Labor Standards Act (FLSA) lawsuits, a class action attorney said.

The case in question, Tyger v. Precision Drilling Corp., is a class action suit in which oil rig workers for Precision Drilling Corp. wanted to be paid for time spent “donning and doffing” gear before and after work.

Precision argued that they shouldn’t have to, under the Portal-to-Portal Act, which defines “preliminary” and “postliminary” work activities as non-compensatory. The District Court agreed and dismissed the case.

But in an Aug. 16 decision, the Appeals Court for the Third Circuit rejected that decision.

“If you're a worker, or you're a plaintiff's lawyer, and you read this case, you're very gung-ho about it, because it says that this is the sort of case that can stick in the court,” Gerald L. Maatman, Duane Morris’ class-action chair, told HRD. “This is a very pro-plaintiff ruling – it makes it harder if you're an employer to comply with the law.”

Law alone can’t decide if safety gear is ‘indispensable’ or ‘intrinsic’

The decision is significant because it means lawsuits against employers around payment for safety gear donning and doffing, and related activities, will be decided case-by-case and based on whether they are deemed to be “intrinsic” or “integral” to primary work, he said. The Precision oil rig workers are required by workplace safety rules to wear protective gear including flame-retardant coveralls and steel-toed shoes, and to walk to and from changing stations to safety meeting locations. If their case makes it to trial, a jury will decide if those activities should be compensated.

“What I thought was telling about the case is that the Third Circuit reversed a very substantial ruling, a ruling involving a case where 1,000 people were involved,” said Maatman, who is based in Chicago. “This ruling suggests that it depends on the job, depends on the circumstances. So, if compliance with the law is tough, this ruling makes it even tougher.”

In a similar case in 2022, a judge decided workers should not be paid by Amazon for walking through metal detectors before and after work, as that activity was deemed preliminary and postliminary by the judge.

What is ‘integral’ protective gear?

In a discussion around what determines “intrinsic” or “integral” activities, the appeals court decided that rules of law alone cannot decide if employees should be paid for time in question – it is a matter of “circumstance and fact”, says Maatman. If an employer is brought to court over a dispute, they will no longer be able to depend on the Port-to-Port Act as a defence.

In its decision, the appeals court defined what constitutes protective gear that is integral or intrinsic to work and therefore eligible for compensation.

Location was identified as relevant, meaning whether employees could don and doff at home could be important to a decision. The court stated that not all employees needed to change at work for it to be compensable; the question is whether workers have a “meaningful option” to change at home. If they do not, then it can be considered integral.

Precision attempted to claim that its workers’ safety gear was generic, therefore not integral to work, but the appeals court disagreed:

“The more specialized the gear, the more likely it is integral… But even generic gear can be intrinsic. Precision tries to equate ‘intrinsic’ with ‘unique’ or at least ‘unusual.’ That is not so: balls are common to many sports but are still integral to them,” the judge’s decision read.

Workplace safety gear guidelines for HR

In light of this decision, Maatman said, it’s important for HR professionals to look at their compensation and overtime policies around donning and doffing, or any other preliminary or postliminary activities, to assess whether they could be integral to employees’ work.

If the employees are unionized, it needs to be determined if the collective bargaining agreement addresses this issue, and if not, if it should be.

In non-union scenarios, employers will have some judgment calls to make, he says.

“One of the things that's important to realize is that the Department of Labor takes a very expansive view of what an employer's obligations are, and will interpret the laws in a way that are very pro-worker,” Maatman said.

“What is so difficult here, from a compliance standpoint, is it's not a hard and fast rule. So it's going to be different for every employer, it's going to be different for every job. Judgments will have to be made by corporations as to their compliance strategies.”