Rodney Tyger, on behalf of himself v. Precision Drilling Corp.

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 22-1613
_______________
RODNEY TYGER, on behalf of himself and those similarly
situated; SHAWN WADSWORTH, on behalf of
himself and those similarly situated,
Appellants
v.
PRECISION DRILLING CORP.;
PRECISION DRILLING OILFIELD SERVICES, INC.;
JOHN DOES 1–10; PRECISION DRILLING COMPANY, LP
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 4:11-cv-01913)
Chief District Judge: Honorable Matthew W. Brann
_______________
Argued: March 8, 2023
Before: SHWARTZ, BIBAS, and AMBRO, Circuit Judges
(Filed: August 16, 2023)
_______________

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Justin L. Swidler [ARGUED]
SWARTZ SWIDLER
9 Tanner Street
Suite 101
Haddonfield, NJ 08033
Counsel for Appellants
Erin Mohan [ARGUED]
U NITED STATES D EPARTMENT OF LABOR
Division of Fair Labor Standards
200 Constitution Avenue NW
Room N-2716
Washington, DC 20210
Anne W. King
U NITED STATES D EPARTMENT OF LABOR
Office of the Solicitor
200 Constitution Avenue NW
Suite N-2119
Washington, DC 20210
Counsel for Amicus-Appellant Secretary of the
United States Department of Labor
Kimberly Cheeseman
Michael C. Crow [ARGUED]
Katherine D. Mackillop
NORTON ROSE FULBRIGHT
1301 McKinney Street
Fulbright Tower, Suite 5100
Houston, TX 77010
Counsel for Appellees

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Sarah J. Miley
L ITTLER MENDELSON
625 Liberty Avenue
EQT Plaza, 26th Floor
Pittsburgh, PA 15222
Counsel for Amicus-Appellee International Association of
Drilling Contractors
_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
Not all work clothes are alike. Some are simply aesthetic,
reflecting the worker’s own preference or an employer’s fash-
ion 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 dis-
agreed. But because it applied the wrong legal test, we will va-
cate and remand.
I. BACKGROUND
A. Congress has told us what activities workers must
be paid for
The Fair Labor Standards Act sets minimum wages and
overtime rates for work. 29 U.S.C. §§ 206, 207. The Supreme

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Court interprets “work” broadly as “physical or mental exer-
tion (whether burdensome or not) controlled or required by the
employer and pursued necessarily and primarily for the [em-
ployer’s] benefit.” IBP, Inc. v. Alvarez, 546 U.S. 21, 25 (2005)
(internal quotation marks omitted).
But not all work is compensable. 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.” 29 U.S.C. § 254(a) (emphases
added).
A “principal activity” is “the productive work that the em-
ployee is employed to perform.” Integrity Staffing Sols., Inc. v.
Busk, 574 U.S. 27, 36 (2014) (emphasis omitted). But “the term
… [also] embraces all activities [that] are an integral and in-
dispensable part of the principal activities.” Steiner v. Mitchell,
350 U.S. 247, 252–53, 256 (1956) (internal quotation marks
omitted) (emphases added); accord IBP, 546 U.S. at 37. To be
integral, a task must be “intrinsic” to the principal activity.
Busk, 574 U.S. at 33. And it is indispensable when a worker
“cannot dispense” with doing it “if he is to perform his princi-
pal activities.” Id.
In short, a task is compensable work if it is both integral
and indispensable to the principal activity, but not if it is pre-
or postliminary to that activity.

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B. The District Court ruled that the oil-rig hands need
not be paid for changing gear
Precision Drilling is an oil company that employs rig hands
to drill oil and gas. Tyger v. Precision Drilling Corp., 594 F.
Supp. 3d 626, 629 (M.D. Pa. 2022). Following workplace-
safety regulations, it requires rig hands to wear protective gear:
flame-retardant coveralls, steel-toed boots, hard hats, safety
glasses, gloves, and earplugs. Id. And for good reason: the rig
hands face risks of fire, crushed toes, flying debris, electric
shock, and chemical exposure.
The rig hands want to be paid for the time they spend
changing into and out of protective gear. (They also want to be
paid for the time spent walking from the rigs’ changing house
to safety-meeting locations. But both sides agree that the walk-
ing claim rises and falls with the changing claim.) So they sued
Precision under the Fair Labor Standards Act.
Precision argues that changing into and out of protective
gear are “preliminary” and “postliminary” activities. So, under
the Portal-to-Portal Act, they are not compensable. The rig
hands counter that changing gear is both integral and indispen-
sable to what the parties agree is their principal activity: drill-
ing for oil and gas.
To resolve that dispute, the District Court borrowed a gear-
changing test from the Second Circuit. Tyger, 594 F. Supp. 3d
at 651. That test asks “whether the gear … guards against
‘workplace dangers’ that accompany the employee’s principal
activities and ‘transcend ordinary risks.’ ” Perez v. City of New
York, 832 F.3d 120, 127 (2d Cir. 2016) (quoting Gorman v.
Consol. Edison Corp., 488 F.3d 586, 593 (2d Cir. 2007)). The

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District Court found that the risks here were “ordinary, hypo-
thetical, or isolated” and that the gear’s protection was “incom-
plete.” Tyger, 594 F. Supp. 3d at 661. So the gear was neither
integral nor indispensable to oil drilling under the Second Cir-
cuit’s test, and the court granted summary judgment for Preci-
sion.
The rig hands now appeal. We review a grant of summary
judgment de novo and draw all reasonable inferences in favor
of the rig hands. Crosbie v. Highmark Inc., 47 F.4th 140, 144
(3d Cir. 2022). Summary judgment is proper only when there
is no genuine dispute of material fact. Fed. R. Civ. P. 56(a).
II. DISTILLING THE R IGHT TEST
Our Court has not yet explained what makes an activity in-
tegral and indispensable to productive work, rather than pre-
liminary or postliminary. So the District Court understandably
looked elsewhere for guidance. Though we do not adopt the
test that it used, we use this opportunity to clarify what it means
to be integral and indispensable.
A. Changing gear can be integral and indispensable
The statutory text suggests that at least some gear changing
is integral and indispensable. Under 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. 29 U.S.C. § 203(o) (citing §§ 206,
207). As the Supreme Court has noted, this subsection would
be superfluous if changing clothes (including protective gear)

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were always a noncompensable preliminary activity. See San-
difer v. U.S. Steel Corp., 571 U.S. 220, 229 (2014); Steiner,
350 U.S. at 254–55.
Plus, the Court has held that changing into and out of some
safety gear is integral and indispensable. It held as much for
battery-plant workers who had to change into “old but clean
work clothes” at the start of each shift and “shower and change
back at the end.” Steiner, 350 U.S. at 251, 256. Doing so, it
reasoned, protected the workers from lead poisoning and sul-
furic-acid burns. See id. at 249–51.
Thus, employers must sometimes pay workers for time
spent changing into and out of protective gear. But which gear
counts is murkier. The integral-and-indispensable “inquiry is
fact-intensive and not amenable to bright-line rules.” Llorca v.
Sheriff, 893 F.3d 1319, 1324 (11th Cir. 2018). Still, we glean
several guideposts from the statutes and caselaw that should
guide trial courts.
B. When changing gear is integral
Recall that changing into and out of gear is “integral” if it
is “intrinsic” to productive work, rather than pre- or postlimi-
nary. Busk, 574 U.S. at 33. Though these terms seem abstract,
statutory text and precedent give us three key factors to con-
sider.
1. Location. It matters where workers change. The root
word of “preliminary” and “postliminary” is limen, Latin for
“threshold.” Preliminary, Oxford English Dictionary (2d ed.
1989); Postliminary, id. So whether the changing takes place

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before or after workers cross the workplace threshold is likely
to be relevant.
We are not the first to draw this spatial connection. In her
Busk concurrence, Justice Sotomayor connected “preliminary”
and “postliminary” to “activities that are essentially part of the
ingress and egress process.” 574 U.S. at 38. And other courts
have emphasized where the changing occurs. Compare Perez
v. City of New York, 832 F.3d at 125 (reasoning that if changing
must be done at work, “that suggests those tasks may qualify
as integral and indispensable”), with Llorca, 893 F.3d at 1325–
26 & n.5 (explaining that changing at home suggests other-
wise), and Bamonte v. City of Mesa, 598 F.3d 1217, 1225–33
(9th Cir. 2010) (same).
The Department of Labor agrees. As it 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.”
29 C.F.R. § 790.8(c) n.65. (We are not deferring to the Depart-
ment’s rule but simply find it persuasive. See Skidmore v. Swift
& Co., 323 U.S. 134, 140 (1944).)
Changing can be intrinsic even if not every worker changes
onsite. It is enough that the vast majority do so “regularly” out
of practical necessity or in line with industry custom. See Stei-
ner, 350 U.S. at 250–51 & n.1. Perhaps a butcher could drive
home in an apron smeared with blood and fat, or a sports-team
mascot could put on her Phillie Phanatic or Rutgers Scarlet
Knight costume before boarding a commuter train. But we
would not reasonably expect them to do so. And both the Fair
Labor Standards and Portal-to-Portal Acts confirm that custom
matters. See 29 U.S.C. § 203(o) (recognizing that “custom or

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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 cus-
toms, practices, and contracts”).
At bottom, the question is whether workers have a “mean-
ingful option” to change at home. Perez v. Mountaire Farms,
650 F.3d 350, 368 (4th Cir. 2011). If they do not, changing is
more likely to be integral to the work.
2. Regulations. Steiner and the Department’s rule also con-
sider regulations about changing clothes or gear. Steiner high-
lighted a state law that required employers to have showers if
employees were “exposed to excessive heat, or to skin contam-
ination.” Tenn. Code Ann. § 5788.15 (Williams 1952 Supp.);
350 U.S. at 250–51. And the rule says changing is more likely
to be integral when “the changing of clothes on the employee’s
premises is required by law.” 29 C.F.R. § 790.8(c) n.65. So reg-
ulations, especially specific regulations, suggest that gear is in-
tegral.
3. Type of gear. Finally, courts should consider what kind
of gear is required—by regulation, employers, or the work’s
nature. Again, the more specialized the gear, the more likely it
is integral. Perez v. City of New York, 832 F.3d at 127. But even
generic gear can be intrinsic. Precision tries to equate “intrin-
sic” with “unique” or at least “unusual.” That is not so: balls
are common to many sports but are still integral to them. Courts
have rightly rejected Precision’s suggestion to disqualify ge-
neric gear. See Steiner, 350 U.S. at 251, 256 (holding “old but
clean work clothes” integral); see also Perez v. City of New
York, 832 F.3d at 127 (rejecting a “categorical rule” that

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“generic protective gear is never integral”); Perez v. Mountaire
Farms, 650 F.3d at 366 (similar); Reich v. IBP, Inc., 38 F.3d
1123, 1125 (10th Cir. 1994) (similar). We do too.
For similar reasons, we agree with the rig hands that even
general workplace-safety gear requirements can be probative.
The rig hands point to an Occupational Safety and Health Ad-
ministration rule that requires employers to “provide[ ]” safety
gear “wherever it is necessary [because] of hazards” in the
workplace. 29 C.F.R. § 1910.132(a). Each employer must as-
sess its own workplace risks and choose and require use of gear
to protect against those hazards. § 1910.132(d)(1). So in fol-
lowing that rule, Precision’s choices to provide gear and of
what gear to provide link that gear to the work being done.
But none of this is to say that all uniforms are integral. At
oral argument, the Department of Labor conceded that a
barista’s putting on a visor and apron would be “much closer
to the line of not integral and indispensable.” Oral Arg. Tr.
31:13–20. We need not draw that line today.
C. When changing gear is indispensable
For an activity to be indispensable, Supreme Court prece-
dent suggests that it need not be strictly necessary, just reason-
ably so. For instance, battery-plant workers could work with
lead and sulfuric acid without showering and changing clothes.
But doing so could burn them and make them sick. See Steiner,
350 U.S. at 249–50. And though butchers could cut meat with
dull knives, doing so would “slow down production[,] affect
the appearance of the meat …, cause waste[,] and make for ac-
cidents.” Mitchell v. King Packing Co., 350 U.S. 260, 262
(1956). But security screenings for Amazon warehouse

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employees are not reasonably necessary for them to do their
principal activities: “retriev[ing] products … and packag[ing]
those products for shipment.” Busk, 574 U.S. at 35. An activity
is “indispensable … only when an employee could not dis-
pense with it without impairing his ability to perform the prin-
cipal activity safely and effectively.” Id. at 37–38 (Sotomayor,
J., concurring) (internal quotation marks omitted).
D. The test’s limits
Our multifactor approach mirrors those of most of our sister
circuits. See Franklin v. Kellogg Co., 619 F.3d 604, 619–20
(6th Cir. 2010) (collecting cases). But the District Court chose
the Second Circuit’s approach, which focuses on whether pro-
tective gear guards against risks that “transcend ordinary”
ones. Perez v. City of New York, 832 F.3d at 127 (quoting Gor-
man, 488 F.3d at 593). Among the circuits, that test is
“unique.” Franklin, 619 F.3d at 619. And it is far afield from
the statutory terms “preliminary” and “postliminary” as well as
the Supreme Court’s terms “integral” and “indispensable.” As
explained above, those terms involve more than just special-
ized risks. So, like most of our sister circuits, we find the ex-
traordinary-risk test too “narrow.” Perez v. Mountaire Farms,
650 F.3d at 365; see also Franklin, 619 F.3d at 619.
Yet without that narrowness, Precision and its amicus fear
that our decision will require paying all industrial workers for
changing into any safety gear. Its fears are overblown; the de
minimis doctrine stems the tide. Under that doctrine, when an
activity “concerns only a few seconds or minutes of work be-
yond the scheduled working hours, such trifles may be disre-
garded.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,

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692 (1946). And the doctrine applies to changing clothes. 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.” Id. But just like the integral-and-indispensable
inquiry, the de minimis doctrine is fact-specific, requiring “def-
inite findings.” Id.
III. UNDER THE R IGHT TEST , THERE A RE
GENUINE FACTUAL D ISPUTES
The District Court erred in granting summary judgment be-
cause there are genuine factual disputes. For instance, how
many rig hands change at work and why? Is changing on the
rig “required by law, by [Precision’s] rules …, or by the nature
of the work”? 29 C.F.R. § 790.8(c) n.65. Or is it “merely a con-
venience to the employee”? 29 C.F.R. § 790.8(c). Is it industry
custom for rig hands to change onsite? Does it take more than
a de minimis amount of time? Appellees’ Br. 45–46 (conceding
that “there is a fact dispute over whether the time [spent chang-
ing] is de minimis”). The record leaves these questions open.
A jury will have to decide whether the rig hands have “a mean-
ingful option to don and doff their protective gear at home” and
whether the time the rig hands spend changing is de minimis.
Perez v. Mountaire Farms, 650 F.3d at 368. These disputes
make summary judgment improper.
* * * * *
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

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productive work. We can find out whether the gear is integral
by looking at where we change, whether regulations or indus-
try custom require changing into gear at work, and how spe-
cialized the gear is. And whether the gear is indispensable de-
pends 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.

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