I love working time cases. And we got a real winner lately.  The Third Circuit has recently ruled that clothes-changing time for oil rig workers was compensable.  In so doing, the appellate court laid out its framework for determining when a preliminary or postliminary activity was “integral and indispensable” to the primary job of the workers and represents a reasoned view on this very crucial issue for employers.  The case is entitled Tyger v Precision Drilling Corp LLC and issued from the Third Circuit.

The lower court rejected the claim by the plaintiffs.  The court applied a test from the Second Circuit which focused on whether the protective gear guarded against “workplace dangers” that were inherent in the employee’s duties and which “transcend[ed] ordinary risks.”  The district court ruled that the risks were “ordinary, hypothetical, or isolated” and that the gear did not completely protect the workers so it could not have been “integral nor indispensable” to oil drilling and rejected the claims for overtime.  The Third Circuit disagreed, looking at three factors to determine the “integral” factor.  These were: 1) the location where the activity occurred; 2) the existence of regulations addressing the activity; and 3) the type of clothing and gear that was involved.

The Court declared that “whether the changing takes place before or after workers cross the workplace threshold” had to be scrutinized.   The Court stated that if the majority of workers change clothes on-site whether “out of practical necessity or in line with industry custom,” that would be sufficient for the activity to be integral.  If the workers did not have a “meaningful option” of changing at home, that would cut against the activity not being compensable.

The Court also specified that if a law or regulation required the clothes changing, that would also militate towards the activity being compensable.  A court must examine the legislative and regulatory landscape when scrutinizing this issue as that would be highly relevant.  In this case, the safety gear that the employer determined was appropriate was done so in response to demands under the Occupational Safety and Health Act.  Thus, this factor also weighed in favor of compensability.

The Court posited a different test for when an activity is indispensable.  The Court stated the activity need only be “reasonably” necessary for the main job to be performed, as opposed to “strictly” necessary.  Put differently, the Court explained that a preliminary or postliminary function becomes indispensable “when an employee could not dispense with it without impairing his ability to perform the principal activity safely and effectively.”  The Court highlighted that the employer always had the de minimis defense available, if the activity truly involved just a few minutes of employee time to perform.  

The Takeaway

 I think the Third Circuit’s reference to regulations is very important. OSHA has many regulations concerning employee safety, especially vis-a-vis protective gear and clothing. If any regulations pertain to a given situation, I believe there is a good chance that the time is compensable. Employers must also look hard at the relation between the activity and the main job and make a judgment as to whether the employee could do the primary job without performing the preliminary task. Lastly, I would be very careful about relying on a de minimis defense as a magic bullet.

Vary careful…

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