Key Court Ruling of Tyger v. Precision Drilling Corp. by the 3rd Circuit Court of Appeals

On August 16, 2023, a decision was rendered in the United States Court of Appeals for the Third Circuit in the case Tyger v. Precision Drilling Corp.

The Court commenced its opinion by stating:

Not all work clothes are alike. Some are simply aesthetic, reflecting the worker’s own preference or an employer’s fashion choice. But when the clothing is crucial to the work they do, workers ordinarily have a right to be paid for the time they spend changing.

Oil-rig workers claim that they should be paid for changing into and out of their protective gear. The District Court disagreed. But because it applied the wrong legal test, we will vacate and remand.

Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *1-2 (3d Cir. Aug. 16, 2023.)

To provide background, the Court stated that “[t]he Fair Labor Standards Act sets minimum wages and overtime rates for work.” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *2 (3d Cir. Aug. 16, 2023)(citing 29 U.S.C. §§ 206, 207.) “The Supreme Court interprets “work” broadly as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the [employer’s] benefit.”” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *2 (3d Cir. Aug. 16, 2023)(citing IBP, Inc. v. Alvarez, 546 U.S. 21, 25, 126 S. Ct. 514, 163 L. Ed. 2d 288 (2005) (internal quotation marks omitted).)

The Court went on to state that “[b]ut not all work is compensable.” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *2 (3d Cir. Aug. 16, 2023.) “Under the Portal-to-Portal Act, employers need not pay workers either for “traveling to and from the actual place [where they] perform[ ] the principal activity or activities [for which they are] … employed” or for “activities which are preliminary to or postliminary to said principal activity or activities.”” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *2 (3d Cir. Aug. 16, 2023)(citing 29 U.S.C. § 254(a) (emphases added).) The Court stated that “[a] “principal activity” is “the productive work that the employee is employed to perform.”” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *2 (3d Cir. Aug. 16, 2023)(citing Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27, 36, 135 S. Ct. 513, 190 L. Ed. 2d 410 (2014) (emphasis omitted).) “But “the term … [also] embraces all activities [that] are an integral and indispensable part of the principal activities.”” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *2 (3d Cir. Aug. 16, 2023)(citing Steiner v. Mitchell, 350 U.S. 247, 252-53, 256, 76 S. Ct. 330, 100 L. Ed. 267 (1956) (internal quotation marks omitted) (emphases added); accord IBP, 546 U.S. at 37.) The Court stated that “[t]o be integral, a task must be “intrinsic” to the principal activity.” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *2 (3d Cir. Aug. 16, 2023) (citing Busk, 574 U.S. at 33.) The Court further stated that “[a]nd it is indispensable when a worker “cannot dispense” with doing it “if he is to perform his principal activities.”” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *2-3 (3d Cir. Aug. 16, 2023)(citing Id.) The Court indicated that, “[i]n short, a task is compensable work if it is both integral and indispensable to the principal activity, but not if it is preor postliminary to that activity.” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *3 (3d Cir. Aug. 16, 2023.)

The Court stated that “[u]nder a subsection of the Fair Labor Standards Act added after the Portal-to-Portal Act, if a collective-bargaining agreement “exclude[s] any time spent in changing clothes or washing at the beginning or end of each workday,” then those activities do not count toward minimum wages or overtime rates.” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *5 (3d Cir. Aug. 16, 2023)(citing 29 U.S.C. § 203(o) (citing §§ 206, 207).) The Court stated that “[t]he integral-and-indispensable “inquiry is fact-intensive and not amenable to bright-line rules.”” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *6 (3d Cir. Aug. 16, 2023)(citing Llorca v. Sheriff, 893 F.3d 1319, 1324 (11th Cir. 2018).)

In assessing “when changing gear is integral”, the Court indicated, in part, that “[a]s [The Department of Labor] explains, changing “on the employer’s premises” is integral when it “is required by law, by rules of the employer, or by the nature of the work.”” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *6-7 (3d Cir. Aug. 16, 2023)(citing 29 C.F.R. § 790.8(c) n.65. (“We are not deferring to the Department’s rule but simply find it persuasive.” See Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161, 89 L. Ed. 124 (1944).) Moreover, “[c]hanging can be intrinsic even if not every worker changes onsite” and “[i]t is enough that the vast majority do so “regularly” out of practical necessity or in line with industry custom.” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *7 (3d Cir. Aug. 16, 2023)(citing Steiner, 350 U.S. at 250-51 & n.1.) The Court stated that “…both the Fair Labor Standards and Portal-to-Portal Acts confirm that custom matters.” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *7 (3d Cir. Aug. 16, 2023)(citing 29 U.S.C. § 203(o) (“recognizing that “custom or practice” under a collective-bargaining agreement can make changing clothes noncompensable”); § 251(a) (“criticizing courts for failing to read the statute in light of “long-established customs, practices, and contracts””).

“…[T]he [Department of Labor’s] rule says changing is more likely to be integral when “the changing of clothes on the employee’s premises is required by law.”” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *8 (3d Cir. Aug. 16, 2023)(citing 29 C.F.R. § 790.8(c) n.65.) “So regulations, especially specific regulations, suggest that gear is integral.” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *8 (3d Cir. Aug. 16, 2023.) Moreover, “[under the Portal-to-Portal Act,]…courts should consider what kind of gear is required—by regulation, employers, or the work’s nature.” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *8 (3d Cir. Aug. 16, 2023.) “…[T]he more specialized the gear, the more likely it is integral.” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *8 (3d Cir. Aug. 16, 2023)(citing Perez v. City of New York, 832 F.3d at 127.) “But even generic gear can be intrinsic.” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *8 (3d Cir. Aug. 16, 2023.)

The Court went on to state that “[f]or an activity to be indispensable, Supreme Court precedent suggests that it need not be strictly necessary, just reasonably so.” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *9 (3d Cir. Aug. 16, 2023.) “[Under the Portal-to-Portal Act,] [a]n activity is “indispensable … only when an employee could not dispense with it without impairing his ability to perform the principal activity safely and effectively.”” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *10 (3d Cir. Aug. 16, 2023)(citing Id. at 37-38 (Sotomayor, J., concurring) (internal quotation marks omitted).)

The Court indicated that “[u]nder [the de minimis] doctrine, when an activity “concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded.”” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *11 (3d Cir. Aug. 16, 2023)(citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692, 66 S. Ct. 1187, 90 L. Ed. 1515 (1946).) “And the doctrine applies to changing clothes.” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *11 (3d Cir. Aug. 16, 2023)(citing Id. at 692-93.) “The Fair Labor Standards Act thus compensates workers only for having to “give up a substantial measure of his time and effort.”” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *11 (3d Cir. Aug. 16, 2023)(citing Id.) “But just like the integral-and-indispensable inquiry, the de minimis doctrine is fact-specific, requiring “definite findings.”” See Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *11 (3d Cir. Aug. 16, 2023)(citing Id.)

In finding that the District Court erred in granting summary judgment because of genuine factual disputes, the Court concluded that:

Many of us, including judges, wear uniforms at work. But Congress has decided that only some of us get paid for the time we spend changing into and out of those uniforms. The test is whether changing is integral and indispensable to our productive work. We can find out whether the gear is integral by looking at where we change, whether regulations or industry custom require changing into gear at work, and how specialized the gear is. And whether the gear is indispensable depends on whether it is reasonably necessary for doing the work safely and well. Because the District Court used a test that strayed too far from those factors, we will vacate and remand for trial.

Tyger v. Precision Drilling Corp., No. 22-1613, 2023 U.S. App. LEXIS 21374, at *12 (3d Cir. Aug. 16, 2023.)

If you have any further questions or concerns as to how this court decision may affect your company’s workplace policies and procedures, we, at Thomas Paschos & Associates, P.C. would be glad to speak with you and review your workplace policies and procedures. One of our attorneys specializing in this field can speak with you today about our services. Contact Thomas Paschos & Associates, P.C. for more information. We can be reached at 856-354-1900 or 267-205-2444. You can also contact Thomas Paschos, Esq. TPaschos@pascholaw.com