Tyger v. Precision Drilling Corp. et al

Filing 276

MEMORANDUM (Order to follow as separate docket entry) re: 239 MOTION for Partial Summary Judgment; 245 MOTION for Summary Judgment as to Liability ; and 259 MOTION to Strike Plaintiffs' Statement of Undisputed Material Facts. Signed by Honorable Matthew W. Brann on 4/11/2018. (jr)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
No. 4:11-CV-01913

RODNEY TYGER and SHAWN
WADSWORTH, on behalf of
themselves and those similarly situated,

(Judge Brann)

Plaintiffs.
v.
PRECISION DRILLING CORP., et al.,
Defendant.
MEMORANDUM OPINION
APRIL 11, 2018
Plaintiffs Rodney Tyger and Shawn Wadsworth, on behalf of themselves
and those similarly situated, and Defendants Precision Drilling Corp., Precision
Drilling Oilfield Services, Inc., and Precision Drilling Company, LP have filed
cross-motions for partial summary judgment. For the reasons discussed below,
Defendants’ Motion is granted in part and denied in part, and Plaintiff’s Motion is
denied.1

1

Defendants have also moved to strike Plaintiffs Statement of Undisputed Material Facts as
having run afoul of M.D.Pa. Local R. 56.1. (“A motion for summary judgment filed
pursuant to Fed.R.Civ.P.56, shall be accompanied by a separate, short and concise statement
of the material facts, in numbered paragraphs, as to which the moving party contends there is
no genuine issue to be tried.”). Having reviewed both Plaintiffs’ submission and Defendants’
eighty-one (81) page response, I will deny this motion. The density and scope of this filing is
owed to Plaintiff’s theory of this case as developed from relevant case law. While at times
inclusive of immaterial facts, Plaintiffs’ inclusion and citation to the record nevertheless
aided the Court in addressing their arguments.

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I.

INTRODUCTION
This case has long history before the Court. Named Plaintiffs Rodney

Tyger and Shaun Wadsworth (“Plaintiffs”), on behalf of themselves and those
similarly situated, filed this Fair Labor Standards Act (“FLSA”) collective action
complaint on October 17, 2011.2 Plaintiffs filed an amended complaint on January
4, 2012,3 and Defendants Precision Drilling Corp., Precision Drilling Oilfield
Services, Inc., and Precision Drilling Company, LP (“Defendants”) answered on
February 7, 2012.4 Defendants thereafter moved for summary judgment on all
claims on February 29, 2012,5 and Plaintiffs moved to conditionally certify a
collective action on February 24, 2012.6 The Honorable Christopher C. Conner of
this Court, to whom the matter was originally assigned, denied Defendants’ motion
for summary judgment on December 18, 2012 “without prejudice to defendant’s
right to refile such a motion at the close of discovery.”7 On January 7, 2013, Chief
Judge Conner conditionally certified a class of “all Precision hourly rig employees
who worked for Precision in the United States within the last three years” based on

2

ECF No. 1.

3

ECF No. 8.

4

ECF No. 18.

5

ECF No. 28.

6

ECF No. 23.

7

ECF No. 48.

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the three FLSA claims identified in the Amended Complaint.8 Approximately
1,000 hourly, non-managerial employees have since joined this suit.9
On January 17, 2013, this matter was reassigned to me. Following an
extensive discovery period, including expert discovery, the parties both moved for
summary judgment. Defendants filed a motion for partial summary judgment on
April 10, 2017.10 In this motion, Defendants argue that no genuine issue of
material fact exists and they are therefore entitled to summary judgment because:
(1) the time Plaintiffs spent donning and doffing personal protective equipment
was not compensable; and (2) the Plaintiffs’ post-donning and pre-doffing walking
time was not compensable.11 This matter has been fully briefed and is now ripe for
disposition.12
Plaintiffs cross moved for summary judgment on April 14, 2017.13 In this
Motion, Plaintiffs request that the Court find, as a matter of law, that “(1)
Plaintiffs’ donning, doffing, and inspecting personal protective equipment (“PPE”)
was integral and indispensable to their jobs and therefore constituted “work” as a

8

ECF No. 49.

9

Pls.’ Statement of Undisputed Material Facts (“Pls.’ SUMF”) (ECF No. 249) ¶ 2; Defs.’
Response to Pls.’ Statement of Undisputed Material Facts (“Defs.’ Resp.”) (ECF No. 263) ¶
2.

10

ECF No. 239.

11

Id.

12

ECF Nos. 241, 257, & 271.

13

ECF No. 245.

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matter of law; (2) Walking and waiting time following the donning and prior to the
doffing is compensable as a matter of law – as well as unpaid meeting / shiftchange time beyond the paid shift; [and] (3) Time spent in required safety and
changeover meetings constituted “work” as a matter of law.”14 This matter has
been fully briefed and is ripe for disposition.15
II.

FACTUAL BACKGROUND16
Defendants Precision Drilling Corp., Precision Drilling Oilfield Services,

Inc., and Precision Drilling Company, LP (“Defendants”) operate oil and gas
drilling rigs under contract with oil and gas producers, known as “operators.”17 On
drilling rigs operated by Defendants, rig hand staffing includes the positions of
floorhand (leasehand), motorhand, derrickhand, driller, and rig manager
(collectively “rig hands”).18 Each of Defendants’ rigs are staffed by two of these
crews, with each crew scheduled for a twelve hour shift followed by either a
quarter hour or half hour pre-tour safety meeting.19 Rig hands work for multiple

14

Id.

15

ECF Nos. 248, 262, & 272.

16

The relevant facts are taken from the factual record in its entirety, to the extent undisputed.
Any facts that remain in dispute are noted as such.

17

Defs.’ Statement of Undisputed Material Facts (“Defs.’s SUMF”)(ECF No. 240) ¶ 1; Pl.’s
Answer to Defs.’ Statement of Undisputed Material Facts (“Pl.’s Answer”) (ECF No. 258) ¶
1.

18

Defs.’s SUMF ¶ 2; Pls.’ Answer ¶ 2.

19

Defs.’s SUMF ¶¶ 4-5; Pls.’ Answer ¶¶ 4-5.

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weeks in a row at more than twelve hours a day. They therefore work significantly
more than 40 hours per week.20
Rig hands who work more than forty hours in a week are compensated at
one and a half times their regular hourly rate.21 As additional compensation,
hourly rig hands receive a flat amount of money for each day spent working with
oil based mud or synthetic based mud.22 This reimbursement is primarily for the
additional cost of more frequent boot replacements.23 The crux of this dispute rests
on whether (1) shifts are actually completed within that time frame, (2) pre-shift
meetings were compensated before mid-2010, (3) employees performed work
before and after those shift times, and (4) employees’ shifts accurately and
regularly pay for all time worked.24
The daily routine of a rig hand on Defendants’ well sites is as follows. On
some rigs, the crew’s scheduled work time commences with a joint meeting with
the outgoing crew in the “dog house,” or an elevated centralized building located
on the rig.25 Prior to that meeting, the incoming crew dons their basic PPE.26 On

20

Defs.’s SUMF ¶ 6; Pls.’ Answer ¶ 6.

21

Defs.’s SUMF ¶ 7; Pls.’ Answer ¶ 7.

22

Pls.’ Answer ¶ 7.

23

Defs.’ Responses to Pl.’s First Request for Admissions, Second Set of Production Requests,
and Third Set of Interrogatories.

24

Pls.’ Answer ¶ 5.

25

Pls.’ SUMF ¶ 21 n.3.

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other rigs, the incoming crew’s shift begins with a pre-tour safety meeting in the
company man’s trailer, rig manager’s trailer, or the safety trailer.27 The routine for
outgoing crews similarly varies depending on whether this changeover meeting is
held. If a changeover meeting is held, the outgoing crew goes to the dog house
prior to 6:00 a.m./p.m., and leaves after the meeting has concluded.28 If a
changeover meeting with both crews is not held, then the outgoing crew members
are relieved individually by the incoming crew members.29 Attendance at these
pre-tour meetings, regardless of the form taken, is mandatory.30
The basic PPE for rig hands includes steel toed boots, a hard hat, safety
glasses, fire retardant coveralls (“FRC”), gloves, and ear plugs.31 The PPE is
required by both Defendants’ policy32 and the Occupational Health and Safety

26

Defs.’s SUMF ¶ 15; Pls.’ Answer ¶ 15. Plaintiffs dispute that compensable work commences
at this changeover meeting, arguing that donning the at-issue PPE constitutes the beginning
of compensable time. See Pls.’ Answer ¶ 15.

27

Defs.’s SUMF ¶ 16; Pls.’ Answer ¶ 16. Plaintiffs dispute that they were not required to don
the PPE at issue prior to this paid pre-tour safety meeting given both OSHA regulations and a
confluence of Precision safety rules. See Pls.’ Answer ¶ 16.

28

Decl. of Mike Skuce (ECF No. 242-1) ¶ 15; Decl. of James Christiansen (ECF No. 242-3) ¶¶
7-8.

29

Decl. of Patrick Breaux (ECF No. 242-2) ¶ 5.

30

Pls.’ SUMF ¶ 18; Defs.’ Resp. ¶ 18.

31

Defs.’s SUMF ¶ 14; Pls.’ Answer ¶ 14.

32

See Precision Training Manual (requiring that “[y]ou must be wearing all of your protective
equipment once you get past the vehicles toward the rig because work activities may be
occurring there.”).

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Administration.33 It is worn to avoid common hazards of the worksite, including
(1) Chemicals, (2) Electrical Shock, (3) Flying debris, (4) Gases – pressurized and
nonpressurized, (5) Dropped objects, (6) Overhead equipment, (7) Rotating
equipment, (8) Slippery surfaces, (9) Suspended loads, and (10) Working at
heights.34
One particular risk to the travails of rig hands are “tripping pipe” operations
performed by a derrickhand.35 During these operations, drilling pipe, weighing
approximately 500 pounds and drill collars ranging from 2,700 pounds to 5,000
pounds, is lifted by elevator and secured before ultimately being lowered into the
bore hole for drilling.36 During this operation, the derrickhand works in an
elevated monkeyboard and is harnessed with a 60’ fall protection rope.37 In this
position, he maneuvers these large pipes into position.38 The additional PPE used
in this operation, including the fall protection rope, is not at issue in this suit.39

33

29 C.F.R. § 1910.132.

34

Pls.’ SUMF ¶ 24; Defs.’ Resp. ¶ 24.

35

Pls.’ SUMF ¶ 30; Defs.’ Resp. ¶ 30.

36

Pls.’ SUMF ¶ 30-31; Defs.’ Resp. ¶ 30-31.

37

Pls.’ SUMF ¶ 31; Defs.’ Resp. ¶ 31.

38
39

Id.
Defs.’ Resp. ¶ 31.

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Defendants’ drilling rigs also use a variety of different types of drilling mud,
including water-based mud, oil-based mud, and gel-based mud.40 Gel-based mud
includes caustic.41 Oil-based mud, on the other hand, commonly contains diesel
fuel.42 Water-based mud does not contain diesel fuel or other petroleum based
products.43 Defendants have explained the risk of chemicals used in drilling muds,
including “caustic,” as follows:
Precision admits that its drilling operations at times involve the use of
caustic and synthetic based mud, and the mixing of caustic and of
additives in mud. Precision further admits that caustic is a
common name for sodium hydroxide, used mainly to control pH
in water based mud, and is a strong alkali that will cause severe
burns to eyes, skin and respiratory tract. If an employee is exposed
to caustic or its mixing in mud without proper PPE, such as rubber
aprons and gloves, possibly use of a respirator, and safety glasses,
then exposure can be harmful to an employee’s health. Precision
admits that exposure to synthetic based mud can be harmful to an
employee’s health and that harm to an employee’s health is likely if,
in the mixing process for synthetic based mud, the correct PPE, such
as rubber aprons and gloves, and safety glasses, is worn. Precision
admits that hundreds of different additives to mud may be used and
exposure to the mixing of some of them can be harmful to an
employee’s health, but denies that harm is likely if proper PPE, like
rubber aprons and gloves, in some cases respirators, and safety
glasses, is worn.44

40

Defs.’s SUMF ¶ 27; Pls.’ Answer ¶ 27.

41

Pls.’ Answer ¶ 27. Over time, “gel and barite” exposure can cause “silicosis or other
respiratory problems.” Id.

42

Defs.’s SUMF ¶ 30; Pls.’ Answer ¶ 30.

43

Defs.’s SUMF ¶ 35; Pls.’ Answer ¶ 35.

44

Pls.’ SUMF ¶ 41; Defs.’ Resp. ¶ 41 (emphasis added).

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Plaintiffs’ expert, Ronald E. Bishop, Ph.D., himself states that drilling fluids used
on Defendants’ rigs contain glycol ethers, such as 2-butoxyethanol, which can
disrupt red blood cells and potentially cause endocrine disruption.45 Defendants, in
turn, dispute the commonality of this finding concerning drilling fluids and, in the
alternative, advance the conclusion of John M. DeSesso, Ph.D that 2butoxyethanol exposure “does not cause injury to the testes or ovaries, does not
cause teratogenicity, and is not a reproductive toxicant at reasonably anticipated
human exposures.”46
During any given shift, rig hands get their dirt, mud, drilling mud, grease,
lubricants, and other substances on their PPE.47 While the extent to which PPE
gets soiled depends on what rig operations are occurring and the position held by
the employee,48 Defendants do not dispute that the instant PPE reduces the risk of
exposure to chemicals and drilling fluid.49 This reduction of risk is further
bolstered by the testimony of numerous rig managers who conceded that these
coveralls often become covered by drilling fluids and caustic chemicals,50 and the

45

Pls.’ SUMF ¶ 52.

46

Defs.’ Resp. ¶ 52 (citing Expert Report of John M. DeSesso (ECF No. 264-1), at 8).

47

Defs.’s SUMF ¶ 2; Pls.’ Answer ¶ 2.

48

Pls.’ SUMF ¶ 38; Defs.’ Resp. ¶ 38.

49

Pls.’ SUMF ¶¶ 61-62; Defs. Resp. ¶¶ 61-62.

50

See Dep. of Shayne Klepper (Rig Manager) (ECF No. 242-9) at 48:5-49:2; Dep. of James
Joyce (Rig Manager) (ECF No. 242-16) at 25:14-28:20; Dep. of Cody Neufeld (Rig
Manager) (ECF No. 10) at 106:22-108:22.

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testimony of Dr. Bishop that the instant, generic PPE has the added benefit of
limiting exposure to “everything that’s on the outside” including this oil-based
mud.51
If a Precision rig hand gets significant amounts of oil-based mud on his
coveralls during a shift, he is required to clean his PPE and change his coveralls as
soon as possible and on the clock.52 There is evidence that rig hands were often
not able to stop in the middle of tasks to change out of soaked PPE.53 However,
when performing work that, by its very nature, exposes them to high amounts of
drilling fluid, Defendants supplied disposable Tyvek suits or waterproof rain suits
that can be used by rig hands.54 They also supplied face shields, respirators,
aprons, and long gloves.55
Defendants’ rigs on which Plaintiffs have worked all have company
provided locker rooms or changing areas for donning and doffing this PPE.56
Plaintiffs contest, however, Defendants’ statements that the changing facilities
were provided for convenience only and that Plaintiffs retained an option to don

51

Dep. of Ronald Bishop at 121:4-124:22.

52

Defs.’s SUMF ¶ 38; Pls.’ Answer ¶ 38.

53

Pls.’ Answer ¶ 37.

54

Defs.’s SUMF ¶ 38; Pls.’ Answer ¶ 38.

55

Defs.’s SUMF ¶ 40; Pls.’ Answer ¶ 40.

56

Defs.’s SUMF ¶ 13; Pls.’ Answer ¶ 13.

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and doff off-premises.57 In support thereof, Plaintiffs specifically cite a confluence
of Precision rules and supporting depositions which they aver remove that choice.58
They cite, for example, the testimony of Defendants’ own Michael Adkins, Global
Vice President of Health and Safety at Precision who opined concerning the safety
of bringing soiled equipment beyond the changing facilities.59 He stated:
Q.

Is it common sense that if you get drilling mud that has caustic
chemicals on you, that you don’t bring it home?

A.

I’m sorry?

Q.

Is it common sense, if you get drilling fluid on you that contains
caustic, you wouldn’t want to bring it home and wash it in your
laundry machine where you do your kid’s laundry? Would you
agree with me that's common sense?

A.

That is common sense but –

Q.

Would you agree with me – I’m -- would you agree with me
that it's common sense that if you get drilling fluid on you and
the drilling fluid contains lime, you would not want to bring it
home into your house where you have a family?

A.

If an employee wants to do that, they can.

Q.

And then No. 8 [in the Employee Handbook] says, “In a drilling
operation, personal protective equipment is the most widely
used protection from exposure to hazardous chemicals. PPE
reduces your risk of exposure but does not eliminate the
hazards. It is important to select the right protective device for a
specific situation and use the device properly.” Did I read that
correctly?

57

58
59

Pls.’ Answer ¶ 13.
Id.
Pls.’ Answer ¶ 17.

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A.

Yes.

Q.

So if a “health hazard,” as defined in Paragraph 6, gets on
standard PPE, is the employee still permitted to bring PPE
home?

A.

Yes.

Q.

Is it safe for the employee to do that?
MR. CROW: Objection, form. Foundation.

A.

There is nothing -- there is no regulation that states they cannot.
…

Q.

Do you know if it's safe without -- do you know if it’s safe,
sitting here today?

A.

I don’t know if it’s unsafe. I can’t answer. You are asking me
“safe.” It’s either way: Safe or unsafe.

Q.

But the question is -- let me just ask it -- do you know if it’s
safe for an employee to bring home PPE that has a health
hazard on it?

A.

I do not know.60

Plaintiffs further cite the testimony of Dr. Ronald Bishop, who stated that:
PPE items primarily protect these workers’ eyes and skin from exposures
to hazardous materials. However, once exposed to hazardous materials,
PPE items themselves become hazardous, primarily via individuals’ skin
contact with hazardous materials, including potentially endocrinedisrupting glycol ethers and through inhalation of radioactive dust
particles and related gases what emanate from contaminated PPE
surfaces. Therefore, it is my opinion that it would be unsafe for
Precision Drilling employees to bring unclean PPE into enclosed
areas (such as personal vehicles) or to bring unclean PPE outside the

60

Id.

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worksite where it is likely to spread contamination and health
hazards.61
III.

LAW

Summary judgment is granted when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.”62 A dispute is “genuine if a reasonable trier-of-fact could find in
favor of the non-movant,” and “material if it could affect the outcome of the
case.”63 To defeat a motion for summary judgment, then, the nonmoving party
must point to evidence in the record that would allow a jury to rule in that party’s
favor.64 When deciding whether to grant summary judgment, a court should draw
all reasonable inferences in favor of the non-moving party.65 Finally, when
presented with cross-motions for summary judgment, such as here, a district court
should consider the motions separately and apply the appropriate burden of
production to each motion.66 Specifically, the United States Court of Appeals for
the Third Circuit has clarified that:

61

Id. (emphasis added).

62

Federal Rule of Civil Procedure 56(a).

63

Lichtenstein v. University of Pittsburgh Medical Center, 691 F.3d 294, 300 (3rd Cir. 2012)
(citing Anderson v. Liberty Lobby, 477 U.S. 242, 248, 252 (1986)).

64

Federal Rule of Civil Procedure 56(c)(1); Liberty Lobby, 477 U.S. at 249.

65

Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation
omitted).

66

See Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008).

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Cross-motions are no more than a claim by each side that it alone is
entitled to summary judgment, and the making of such inherently
contradictory claims does not constitute an agreement that if one is
rejected the other is necessarily justified or that the losing party
waives judicial consideration and determination whether genuine
issues of material fact exist.67
IV.

ANALYSIS
A.

Defendants’ Motion for Partial Summary Judgment

Defendants argue that they are entitled to summary judgment on three
premises in this FLSA collective action. First, they argue that the undisputed facts
demonstrate that Plaintiffs are not entitled to compensation for donning and
doffing of personal protective gear (“PPE”). Second, Defendants argue that,
pursuant to the failure of their claim for donning and doffing compensation,
Plaintiffs are not entitled to compensation for walking time between the donning
and doffing and the pre and post-shift safety meeting locations. Finally,
Defendants move for summary judgment on the claim that the failure to pay this
above compensation was a willful violation of the FLSA. I will address each of
these arguments below.
(1)

Whether Defendants Are Entitled to Summary
Judgment on Plaintiffs’ Compensation Claim for
Time Spent Donning and Doffing the Instant Personal
Protective Equipment

67

Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008) (quoting Rains v.
Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)).

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The Fair Labor Standards Act (“FLSA”) was enacted in 1938 to protect
covered workers from substandard wages and oppressive working hours.68 To
accomplish this goal, “[t]he FLSA establishes federal minimum-wage, maximumhour, and overtime guarantees that cannot be modified by contract.”69 Among
these guarantees is a section stipulating that covered employers may not employ
any employee “for a workweek longer than forty hours unless such employee
receives compensation for his employment . . . at a rate not less than one and onehalf times the regular rate at which he is employed.”70 An employer who violates
this section may be held liable for backpay, liquidated damages, and attorney’s
fees.71
The FLSA does not define the terms “work” or “workweek.”72 In this
absence, the Supreme Court in Anderson v. Mt. Clemens Pottery Co .“defined ‘the
statutory workweek’ to ‘include, all time during which an employee is required to
be on the employer’s premises, on duty or at a prescribed workplace,’ ” including
“time necessarily spent by employees walking from timeclocks near the factory
entrance gate to their workstations.”73 This holding was short-lived. In 1946,

68

Barrentine v. Arkansas-Best Freight System, 450 U.S 728, 739 (1981); 29 U.S.C. § 202(a).

69

Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 69 (2013).

70

29 U.S.C. § 207(a)(1).

71

Integrity Staffing Solutions, Inc. v. Busk, 135 S.Ct. 513, 516 (2014).

72

IBP, Inc. v. Alvarez, 546 U.S. 21, 25 (2005).

73

Id. at 25–26 (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690–91 (1946)).

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Congress passed the Portal–to–Portal Act to shield employers from the resulting
unexpected liability resulting from portal-to-portal claims.74 The Portal–to–Portal
Act created two exceptions to FLSA-mandated compensation:
(1) walking, riding, or traveling to and from the actual place of
performance of the principal activity or activities which such
employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said principal
activity or activities.75
This Act therefore created exceptions for “travel to and from the location of the
employee’s ‘principal activity,’ and for activities that are preliminary or
postliminary to that principal activity.”76 It did not otherwise change the Court’s
earlier descriptions of “work,” “workweek”, or “workday.”77
“Principal activity or activities” excluded from the ambit of the Portal–to–
Portal Act have been defined by the Supreme Court to include “all activities which
are an ‘integral and indispensable part of the principal activities.’ ”78 Most recently
addressed in Integrity Staffing Solutions, Inc. v. Busk, the Supreme Court has

74

De Asencio v. Tyson Foods, Inc., 500 F.3d 361, 367 (3d Cir. 2007).

75

29 U.S.C. § 254(a).

76

IBP, Inc. v. Alvarez, 546 U.S. 21, 28 (2005).

77
78

Id.
Integrity Staffing Solutions, Inc. v. Busk, 135 S.Ct. 513, 517 (2014).

- 16 -

defined these words in their ordinary sense.79 To that end, the Supreme Court
wrote that:
The word “integral” means “[b]elonging to or making up an integral
whole; constituent, component; spec[ifically ] necessary to the
completeness or integrity of the whole; forming an intrinsic portion or
element, as distinguished from an adjunct or appendage.” (citations
omitted). And, when used to describe a duty, “indispensable” means a
duty “[t]hat cannot be dispensed with, remitted, set aside, disregarded,
or neglected.” (citations omitted).
In the conjunctive, “an activity is therefore integral and indispensable to the
principal activities that an employee is employed to perform “if it is an intrinsic
element of those activities and one with which the employee cannot dispense if he
is to perform his principal activities.”80
In its motion for partial summary judgment and accompanying briefing,
Defendants argue that, because donning and doffing the personal protective
equipment (“PPE”) cited is not a principal activity which Plaintiffs are hired to
perform, the inquiry properly before this Court is whether donning and doffing this
equipment is “integral and indispensable” to their primary activity—drilling oil
and gas wells.81 Defendants aver that these preliminary and postliminary activities

79

Id.

80

Id.; see also 29 CFR § 790.8(b) (2013) (“The term ‘principal activities’ includes all activities
which are an integral part of a principal activity”); § 790.8(c) (“Among the activities
included as an integral part of a principal activity are those closely related activities which
are indispensable to its performance”).

81

Defs.’ Br. in Supp. of Mot. for Partial Summ. J. (ECF No. 241), at 10.

- 17 -

fail this test because they are not an intrinsic element of drilling a well.82 In
support of this conclusion, Defendants specifically state that a well can be drilled
without workers donning this basic PPE.83 Furthermore, the present working
environment is not analogous or comparable to potentially lethal working
environments84 which other courts have concluded rendered protective gear
“integral and indispensable.”85 Rather, Defendants advance that the instant gear,
imposed pursuant to OSHA’s general industry regulations, is generic and cannot as
a matter of law meet the applicable legal threshold.86
Plaintiffs, in opposition here and in their separately addressed motion for
partial summary judgment, argue for a contrary result.87 Specifically, Plaintiffs
contend that donning and doffing of the relevant PPE is mandated both by
regulations governing the industry and Defendants’ own safety policies.88
Furthermore, responding to Defendants’ argument concerning the possibility of
performing the principal activities of the drilling sans the PPE, Plaintiffs attempt to

82

Id. at 11.

83

Id. at 12.

84

To the extent that the present working conditions evidence a lethal environment, Defendants
argue that additional protective gear (including a respirator, face mask, rubber apron, and
rubber gloves) is donned by employees on the clock. See Defs.’ Br. in Supp. of Mot. for
Partial Summ. J. (ECF No. 241), at 16.

85

Defs.’ Br. in Supp. of Mot. for Partial Summ. J. (ECF No. 241), at 15-16.

86

Id.

87

Pl.’s Memorandum of Law in Opp. To Defs.’ Mot. for Partial Summ. J. (ECF No. 257).

88

Id. at 4.

- 18 -

demonstrate the folly of this argument by discussing the daily dangers faced by rig
workers.89 Most pertinently, Plaintiffs cite the expert opinion of Ronald E. Bishop,
Ph.D. to demonstrate the chemical exposure to which rig workers are exposed on a
daily basis and the hazardous health effects of this exposure.90 In essence and in
direct response to Defendants, Plaintiffs argue that this working environment
approaches the lethal level addressed in Steiner v. Mitchell,91 and that holding the
instant PPE to be generic and thus not integral and indispensable would be in
contravention of both Busk and applicable circuit precedent.92
Given the citation to both Steiner and the different interpretations which the
parties have assigned to this case in light of Busk, discussion and exploration of
these cases in greater detail is warranted. In Steiner v. Mitchell, the plaintiffs were
battery plant workers who, by nature of their work, were customarily exposed to
various chemicals and accompanying fumes.93 These chemicals included “lead
metal, lead oxide, lead sulphate, lead peroxide, and sulphuric acid.”94 The risk
from exposure to these chemicals was “very great” because the lead fumes and
dust within the plant would “attach themselves to the skin, clothing and hair of the

89

Id. at 5-6.

90

Id. at 6.

91

Steiner v. Mitchell, 350 U.S. 247 (1956).

92

Pl.’s Memorandum of Law in Opp. To Defs.’ Mot. for Partial Summ. J. (ECF No. 257), at 520.

93

Steiner, 350 U.S. at 249.

94

Id.

- 19 -

employees.”95 Furthermore, the use of sulphuric acid within the plant exacerbated
the susceptibility of these employees to contamination.96
The Supreme Court held in Steiner that the time battery plant employees
spent showering and changing clothes post-shift was compensable, given this toxic
exposure, because “it would be difficult to conjure up an instance where changing
clothes and showering are more clearly an integral and indispensable part of the
principal activity of employment.”97 This holding was recently noted with
approval in both IBP, Inc. v. Alvarez,98 and Integrity Staffing Solutions, Inc. v.
Busk.99 Indeed, in Busk, a unanimous decision of the Supreme Court, Justice
Sotomayor wrote a concurring opinion to emphasize that both DOL regulations
and precedent make clear that “an activity is ‘indispensable’ to another, principal
activity only when an employee could not dispense with it without impairing his
ability to perform the principal activity safely and effectively.”100 Citing cases in
which the Court had found “integral and indispensable activity” and contrasting
them to the circumstance before the Court, Justice Sotomayor emphasized that:
Thus, although a battery plant worker might, for example, perform his
principal activities without donning proper protective gear, he could

95

96

Id.
Id.

97

Id. at 256.

98

546 U.S. 21 (2005).

99

135 S.Ct. 513 (2014).

100

Id. at 520 (Sotomayor, J., concurring).

- 20 -

not do so safely, (citation omitted); likewise, a butcher might be able
to cut meat without having sharpened his knives, but he could not do
so effectively. (citation omitted).101
The question presented therefore is whether the undisputed facts concerning
the dangers inherent in the principal activity of oil and drilling render the instant
personal protective equipment “integral and indispensable.” The scope of this
analysis necessarily displaces many of the arguments advanced by the parties.
First, Plaintiffs, in their brief in opposition, rightly point out the weakness of
Defendants’ argument that the PPE was not “integral and indispensable” because it
was theoretically possible to perform their principal tasks sans any gear.102 In
support of this argument, Defendants cite both the deposition testimony of Plaintiff
workers who admitted that a well can be drilled without the basic PPE,103 and
evidence that such equipment had not been required in the past.104 In accordance

101

Id.

102

Pl.’s Memorandum of Law in Opp. To Defs.’ Mot. for Partial Summ. J. (ECF No. 257), at 36.

103

Id. at 12 (citing Dep. of Glenn Hoganson (ECF No. 242-20) at 9-15, 20-23; Dep. of Jacob
Lee Horst (ECF No. 242-21) at 55:18-56:1; Dep. of John Beaver (ECF No. 242-22) at 44:2246:9; Dep. of Weston Mallin (ECF No. 242-23) at 99:4-100:5; Dep. of Rickey Koopman
(ECF No. 242-24) at 14:20-16:6; Dep. of Jeremy E. Outman (ECF No. 242-25) at 62:2-63:9;
Dep. of Travis Brasseaux (ECF No. 242-30) at 62:15-63:13; Dep. of Michael Volkman (ECF
No. 242-31) at 89:21-90:11, 118:20-119:6; Dep. of Mark Hayward (ECF No. 242-33) at
87:23-88:2; Dep. of Jeremy Mitchell (ECF No. 242-34) at 46:24-47:11).

104

Id. (citing Dep. of Shayne Klepper (ECF No. 242-9) at 68:5-15; Dep. of Cody Neufeld (ECF
No. 242-10) at 78:22-79:7; Dep. of Glenn Hoganson (ECF No. 20) at 9-15, 20-23; Dep. of
Michael Volkman (ECF No. 242-31) at 89:21-90:11, 118:20-119:6).

- 21 -

with the above examination of Steiner and Busk, this superficial argument misses
the mark.
Rather, the pertinent inquiry remains whether the PPE was rendered
“integral and indispensable” because, in its absence, Plaintiffs could not drill a well
safely or effectively. In support of this Steiner argument, Plaintiffs argue first that,
because federal law required the use of the instant PPE (steel toed boots, coveralls,
safety glasses, and a hard hat), it was, as a matter of law, “integral and
indispensable” to their safe completion of workday tasks.105 Indeed, the
Occupational Safety and Health Administration (“OSHA”) at 29 C.F.R. §
1910.132 relates that:
Protective equipment, including personal protective equipment for
eyes, face, head, and extremities, protective clothing, respiratory
devices, and protective shields and barriers, shall be provided, used,
and maintained in a sanitary and reliable condition wherever it is
necessary by reason of hazards of processes or environment, chemical
hazards, radiological hazards, or mechanical irritants encountered in a
manner capable of causing injury or impairment in the function of any
part of the body through absorption, inhalation or physical contact.
This regulation, however, and any accompanying policy of Defendants requiring
the donning of the instant PPE,106 does not alter the instant analysis. Instead, like
the above argument of Defendants concerning the ability of Plaintiffs to perform
their tasks without the instant PPE, this argument fails.

105

Pl.’s Memorandum of Law in Opp. To Defs.’ Mot. for Partial Summ. J. (ECF No. 257), at 4.

106

See HSE Field Reference Manual at 8-9.

- 22 -

As correctly pointed out by Defendants, the Supreme Court in Busk
expressly rejected the argument that, because an employer required a particular
activity, that activity was in itself “integral and indispensable.”107 Indeed, the
Supreme Court presciently wrote that “[i]f the test could be satisfied merely by the
fact that an employer required an activity, it would sweep into “principal activities”
the very activities that the Portal–to–Portal Act was designed to address.”108
Furthermore, while the presence of an OSHA regulation requiring the instant PPE
is relevant to the instant analysis under Busk, it is not wholly determinative. 109
Rather, the inquiry remains whether the working environment renders donning and
doffing the instant PPE indispensable to safe completion of the Plaintiffs’ principal
activities. My analysis now turns to that issue.
In support of their argument that the present drilling activities create a
Steiner environment, Plaintiffs cite the following dangers inherent to the drilling of

107

Busk, 135 S.Ct. at 519 (emphasis in original). See also IBP, Inc. v. Alvarez, 546 U.S. 21, 4041 (2005)(“[T]he fact that certain preshift activities are necessary for employees to engage in
their principal activities does not mean that those preshift activities are ‘integral and
indispensable’ to a ‘principal activity’ under Steiner.”).

108

Busk, 135 S.Ct. at 519.

109

See Gorman v. Consolidated Edison Corp., 488 F.3d 586, 594 (2d Cir. 2007)(“The donning
and doffing of generic protective gear is not rendered integral by being required by the
employer or by government regulation.”)(collecting cases); Bonds v. GMS Mine Repair
Maintenance, Inc., No. 13-CV-1217, 2015 WL 5602607, at *10-11 (W.D.Pa. Sept. 23,
2015)(rejecting plaintiffs’ argument that, because an employer required attendance at preshift safety meetings, such meetings were integral and indispensable); Olive v. Tennessee
Valley Authority , No. 15-CV-00350, 2015 WL 4711260, at *3-5 (N.D.Ala. Aug. 7,
2015)(recognizing that, while a Nuclear Regulatory Commission regulation rendered postshift radiation scans at a nuclear power facility indispensable, “indispensable is not
synonymous with integral.”).

- 23 -

6,000-foot wells using both potentially dangerous chemicals and machinery.110
Plaintiffs focus this Steiner argument on their potential exposure to caustic and
other chemicals in the course of their principal activities.111 Indeed, they cite the
deposition testimony of their expert Dr. Bishop, who opines on the chemical nature
of drilling mud.112 In that deposition, Dr. Bishop stated, in specific relation to this
exposure, that “it’s not a question of are these people being exposed to hazardous
chemicals,” but rather “how much and for how long.”113 Even accepting the
veracity of these statements concerning the harmful nature of drilling muds used
(and I note that Defendants vociferously dispute the conclusions of Dr. Bishop114
and have advanced their own expert with contradictory findings),115 this fact in
itself does not tell the whole story.
In the instant matter, Defendants argue that the existence of additional PPE
in this case renders the instant generic PPE outside the ambit of “integral and
indispensable.” In Gorman v. Consolidated Edison Corp., admittedly a pre-Busk

110

Pl.’s Memorandum of Law in Opp. To Defs.’ Mot. for Partial Summ. J. (ECF No. 257), at
10.

111

Pl.’s Memorandum of Law in Opp. To Defs.’ Mot. for Partial Summ. J. (ECF No. 257), at 6–
7.

112

Id. (citing Dep. of Ronald E.. Bishop, Ph.D. at 78:11-79:16).

113

Id.

114

See Defs.’ Reply Br. in Further Support of Mot. for Part. Summ. J. (ECF No. 272), at 10. No
motion to strike this expert report has been filed, and, for the purposes of the instant analysis,
the Court assumes that this evidence is admissible.

115

Defs.’ Resp. ¶ 52 (citing Expert Report of John M. DeSesso (ECF No. 264-1), at 8).

- 24 -

interpretation of the donning and doffing issues, the United States Court of
Appeals for the Second Circuit held that donning and doffing of similar protective
gear—helmet, safety glasses, and steel-toed boots—was not “integral and
indispensable” to employment at a nuclear power plant.116 Some courts have since
found similar generic personal protective gear to not be integral and
indispensable.117
However, when the Second Circuit revisited this holding in Perez v. City of
New York, a post-Busk decision, it noted that Gorman court did not endorse a
categorical rule that generic PPE is never integral or indispensable.118 Rather,
although the generic nature of gear may herald that conclusion, the inquiry remains
“whether the gear—however generic or specialized—guards against ‘workplace
dangers” that accompany the employee’s principal activities and “transcend
ordinary risks.’ ”119 “This inquiry requires a fact-intensive examination of the gear
at issue, the employee’s principal activities, and the relationship between them.”120

116

488 F.3d 586, 594 (2nd Cir. 2007).

117

See, e.g., Alanis v. Tracer Indus. Mgmt. Co., 2016 WL 7551073 (E.D. Tex. Aug. 1, 2016),
report and rec. adopted, 2016 WL 4371535 (E.D. Tex. Aug. 16, 2016) (holding that PPE
consisting of hard hat, safety goggles, fire retardant clothing, work boots, Kevlar sleeves and
H2S monitors was standard safety gear not integral and indispensable to principal work
activity of refinery workers); Stanley v. Car-Ber Testing Texas, LLC, 2015 WL 3980272 at
*8 (E.D. Tex. June 29, 2015).

118

832 F.3d 120, 127 (2d Cir. 2016).

119
120

Id.
Id.

- 25 -

Here, the record is replete that, when interacting with potentially hazardous
chemicals, Plaintiff workers don additional PPE on the clock. For example, in the
Declaration of Mike Skuce, a Vice President of Operations for Precision Drilling
Company, L.P., he attests that:
Additional types of PPE are required for performing certain
operations on the rig. For example, employees who are required to
mix chemicals in drilling mud will often have to wear a face shield,
respirator, rubber gloves and rubber apron. Those items will be
donned and doffed by an employee during his shift and “on-theclock.” For employees who are performing work that will expose
them to significant amounts of oil based mud, Precision also supplies
disposable Tyvek suits or waterproof rain suits which are worn over
their coveralls. These items are also donned and doffed “on-theclock.”121
The provision of this additional PPE when working with hazardous chemicals is
confirmed by (1) Jim Christensen, a rig manager who has throughout the course of
his employment worked “on several Precision rigs,”122 and (2) Shayne Klepper, a
ten year employee of Precision who at the time of his deposition was a rig
manager.123
The existence of this additional, and specialized, PPE is further recognized
throughout the factual record by Plaintiffs themselves. For example, in his
deposition, Plaintiff James McIvor states the following:

121

Declaration of Mike Skuce (ECF No. 242-1) ¶ 12.

122

Declaration of Jim Christensen (ECF No. 242-3) ¶ 17; Deposition (ECF No. 242:11), at 32:34.

123

Dep. of Shayne Klepper (ECF No. 242-9) at 49:3-23.

- 26 -

Q.

And you agree that the PPE individuals wear protects them
from direct exposure to those chemicals?
MR. MOORE: Objection, form.

A.

The personnel that are operating or using those chemicals have
special PPE to wear.124

Plaintiff John Beaver similarly states:
Q.

All right. When you would do that, would you have special PPE
that you wore to do that job?

A.

Yes, you did.

Q.

Can you tell us about that special PPE that you would wear?

A.

You’d have to wear a respirator, rubber gloves and a rubber
apron.125

The donning and doffing of additional, specialized gear when working with caustic
chemicals is repeatedly echoed by other Plaintiffs to this action.126
Faithful application of the summary judgment standard requires that I view
all facts in the light most favorable to Plaintiffs and make all reasonable inferences
to same. To that end, I must recognize first that Gorman presents a rather narrow
view of the compensability of generic PPE. Indeed, beyond the treatment rendered
by the Second Circuit when it revisited the issue in Perez, I note that other courts

124

Dep. of James McIvor (ECF No. 242-12) at 47:16-20.

125

Dep. of John Beaver (ECF No. 242-22) at 43:19-25.

126

See, e.g., Dep. of Cody Neufeld (ECF No. 242-10) at 118:17-119:23; 123:2-14; Dep. of
Jeremy Outman (ECF No. 242-25) at 24:15-23; 81:24-82:8; Dep. of Michael Volkman (ECF
No. 242-31) at 59:24-62:11; Dep. of Kaamil Alghanee (ECF No. 242-32) at 30:5-25; Dep. of
Jeremy Mitchell (ECF No. 242-34) at 48: 3-18.

- 27 -

have cautioned against its broad application. For example, in Franklin v. Kellogg
Co., the United States Court of Appeals for the Sixth Circuit noted that “[t]he
Second Circuit's position appears to be unique,” and that both the “Ninth and
Eleventh Circuits have both interpreted Steiner less narrowly.”127 This narrow
view was similarly rejected by the Fourth Circuit in Perez v. Mountaire Farms.128
District Courts have also voiced skepticism.129
Furthermore, I note that a genuine dispute of material fact exists concerning
the harmful nature of the drilling mud and other chemicals which are
commonplace in Plaintiffs’ principal duties. For example, Plaintiffs have
advanced the opinion of their expert Dr. Bishop concerning the chemical content of
drilling muds and the dangers they pose. He stated specifically:
We know what drilling muds have to do. They have to kill the bacteria
that form biofilms and plug pores in wells. They have to include
corrosion inhibitors because they’re drilling holes into hot rock that’s
also salty, salt water, and highly corrosive, so that the lifetime of steel
parts put down into situations like that is a very short lifetime, shorter
than they want for the life of the equipment and also for their well.

127

619 F.3d 604, 619-20 (6th Cir. 2010)(citing Ballaris v. Wacker Siltronic Corp., 370 F.3d 901,
910 (9th Cir. 2004); Bonilla v. Baker Concrete Constr., Inc., 487 F.3d 1340, 1344 (11th Cir.
2007)).

128

650 F.3d 350, 365 (4th Cir. 2011).

129

See, e.g., Spoerle v. Kraft Foods Glob., Inc., 527 F.Supp.2d 860, 864-65 (W.D.Wis. 2007);
Anderson v. Perdue Farms, Inc., 604 F.Supp.2d 1339, 1351 (M.D.Ala. 2009); Adams v.
Alcoa, Inc., 822 F.Supp.2d 156, 164 (N.D.N.Y. 2011)(following Gorman, but noting that
“[i]t is true that Gorman 's interpretation of Steiner is unusual and that courts in other circuits
have rejected it.”).

- 28 -

They also have to include certain lubricants, certain fluid loss
additives, and this is before we start talking about special
circumstances of high iron in a well or the presence or not of
hydrogen sulfide.
So we know what chemicals need to go into these mud mixes simply
to do what the muds have to do. And I Know what the range of
options are. And all the ranges of options for a working drilling mud,
whether its water based or oil-based invert mud, are hazardous
chemicals. There are no nonhazardous options for making drilling
muds do what they need to do. And there are also very few completely
nonhazardous holds in which to drill one you get past about 3,000 feet
in depth into the rock.
So it’s not a question of are these people being exposed to hazardous
chemicals. They are being exposed to hazardous chemicals. At this
point the only question is how much and for how long.130
Dr. Bishop’s Report itself states that the dangers of glycol ether, such as 2butoxyethanol, exposure, and the presence of the same in Precision drilling fluid
additives.131 The potentially harmful nature of the oil-based mud specifically is
corroborated in the testimony of Plaintiff Glenn Hoganson.132 Therefore, while
Defendants vigorously contest the conclusions of Dr. Bishop and advance
contradictory expert testimony,133 his unstricken report and testimony at this stage

130

Dep. of Ronald Bishop at 78:11-79:16.

131

See Expert Report of Ronald E. Bishop, Ph.D., CHO, at 5.

132

Dep. of Glenn Hoganson (ECF No. 242-20) at 23:6-16 (Q. And in all of your times working
on rigs, you got oil-based mud on your skin, right? A. From head to toe. Q. Have you ever
gotten sick from it? A. No. But my brother has gotten severely ill from it, which is funny
because, you know, I kept telling him, ahh, it’s all in your head, it's all in your head. But
when he went to the doctor, the blood and skin infections and everything he had were real,
and to this day I catch a little gruff from my parents over it.).

133

Defs.’ Resp. ¶ 52 (citing Expert Report of John M. DeSesso (ECF No. 264-1), at 8).

- 29 -

of litigation is sufficient to raise a dispute as to the toxicity of this exposure and the
working environment in which Plaintiffs labor.
Defendants essentially argue that, even if accepted by the Court, this toxicity
is nevertheless immaterial due to the presence of specialized PPE when mixing
chemicals. This contention, however, is unavailing given that the factual record
contains instances of Plaintiffs’ coveralls, while crafted as flame retardant, being
covered by drilling mud and chemicals. Plaintiffs have first noted the deposition
testimony of numerous rig managers who conceded that these coveralls often
become covered by oil-based mud.134 Therefore, while Defendants argue that this
fact is insignificant given that Plaintiffs are directed to change coveralls when they
get covered, I am nevertheless compelled at this stage of litigation to accept the
inference and evidence advanced by Dr. Bishop that the purpose of the PPE has the
added benefit of limiting exposure to “everything that’s on the outside” including
this oil-based mud.135 This “first line of defense” argument against potentially
harmful chemicals is further corroborated by the deposition testimony of Plaintiff
Glenn Hoganson who stated:
Q.

It can soak through the coverall, can’t it?

134

See Dep. of Shayne Klepper (Rig Manager) (ECF No. 242-9) at 44:10-44:24; 48:5-49:2;
Dep. of James Joyce (Rig Manager) (ECF No. 242-16) at 25:14-28:20; Dep. of Cody Neufeld
(Rig Manager) (ECF No. 10) at 106:22-108:22.

135

Dep. of Ronald Bishop at 121:4-124:22.

- 30 -

A.

Exactly. It gives you a layer of some protection, but it also -that's why I was hesitating just asking because it's, again, it's
each situation is different and protection is subject to
interpretation. But as far as keeping oil-based mud off of you
completely, other than a rubber suit with a hose hooked to it for
oxygen, forget it. It’s going to get on you.136

In sum, when viewing the factual record in the light most favorable to the
non-moving party—Plaintiffs, I conclude that a genuine dispute of material fact
concerning the toxicity of the oil-based mud precludes the entry of summary
judgment in Defendants’ favor. While the instant PPE is essentially “generic” in
nature, I find compelling the Second Circuit’s decision in Perez v. City of New
York that a finding of “integral or indispensable” is not categorically foreclosed by
genericness.137 Rather, the inquiry remains whether the PPE guards against
‘workplace dangers” which “transcend ordinary risks.’ ”138 As noted, there is
genuine dispute as to the level of chemical toxicity to which Plaintiffs are exposed.
Considering the evidence of record which implicates the coveralls as a first line of
defense, this dispute prevents the imposition of Defendants’ motion for partial
summary judgment on this ground.139

136

Dep. of Glenn Hoganson (ECF No. 242-2) at 22:20-23:5.

137

832 F.3d 120, 127 (2d Cir. 2016).

138
139

Id.
I note that Defendants also move for the imposition of summary judgment under the “change
at home rule.” As noted above and in complement to settled law, Department of Labor
(“DOL”) regulations declare that principal activities “include [ ] all activities which are an
integral part of a principal activity.” 29 C.F.R. § 790.8(b)(footnote reference
omitted). Section 790.8(c) also provides the following example of integral activities:

- 31 -

(2)

Whether Defendants Are Entitled to Summary
Judgment on Plaintiffs’ Compensation Claim for
Time Spent Walking Between the Donning and
Doffing and Pre and Post-Shift Safety Meeting
Locations

The law is settled that walking time is non-compensable under the Portal to
Portal Act when it precedes the start of principal work activities or follows the end
of such activities.140 Walking time, however, becomes compensable if
encompassed between principal activities of an employee’s workday.141
Specifically, in that circumstance, the Department of Labor's “continuous
workday” rule provides that the exemptions from FLSA coverage under 29 U.S.C.

Among the activities included as an integral part of a principal activity are those
closely related activities which are indispensable to its performance. If an employee
in a chemical plant, for example, cannot perform his principal activities without
putting on certain clothes, changing clothes on the employer’s premises at the
beginning and end of the workday would be an integral part of the employee's
principal activity. On the other hand, if changing clothes is merely a convenience to
the employee and not directly related to his principal activities, it would be
considered as a preliminary or postliminary activity rather than a principal part of the
activity. However, activities such as checking in and out and waiting in line to do so
would not ordinarily be regarded as integral parts of the principal activity or
activities. Id. § 790.8(c).
In an explanatory footnote, the regulation further states that “[s]uch a situation may exist
where the changing of clothes on the employer’s premises is required by law, by rules of the
employer, or by the nature of the work.” Id. n. 65. Plaintiffs, in response, question the
viability of this decision post-Busk. Pl.’s Memorandum of Law in Opp. To Defs.’ Mot. for
Partial Summ. J. (ECF No. 257), at 21. In the alternative, and assuming the continued
viability of this defense, Plaintiffs nevertheless argue, inter alia, that the nature of the work
prevents Plaintiffs from bringing PPE home. Here, I find summary judgment inappropriate
because, pursuant to the above discussion of the nature of work, Plaintiffs have advanced
facts from which a reasonable jury may find a take home option illusory. See Perez v.
Mountaire Farms, Inc., 601 F.Supp.2d 670, 679 n. 2 (D.Md. 2009).
140

IBP, Inc. v. Alvarez, 546 U.S. 21, 35-37 (2005).

141

Id. at 37.

- 32 -

§ 254(a), or the Portal to Portal Act, do not apply to the periods of time between
the employee’s performance of the first principal activity and the last principal
activity of a continuous workday.142 Here, having found that a genuine dispute as
to material fact precludes a finding that donning and doffing is compensable as a
matter of law, the same result is compelled for walking time. Indeed, given the
existence of a genuine dispute of material fact as outlined above, summary
judgment under the continuous workday rule is similarly inapplicable.
(3)

Whether Defendants Are Entitled to Summary
Judgment on Plaintiffs Claim that the Failure to Pay
this Above Compensation Was a Willful Violation of
the FLSA

Defendants next move for summary judgment on Plaintiffs’ claim to the
extent it alleges that the failure to pay the above compensation was a willful
violation of the FLSA. The FLSA provides two (2) different statutes of limitation:
three (3) years if the violation is willful, and two (2) years if it is not willful.143 An
employer willfully violates the FLSA when it “either knew or showed reckless
disregard for the matter of whether its conduct was prohibited by the
statute.”144 Furthermore, in explaining this willfulness standard, the Supreme
Court in McLaughlin v. Richland Shoe Co. noted the following:

142

29 C.F.R. § 790.6(a); Alvarez, 546 U.S. at 37.

143

See 29 U.S.C. § 255(a).

144

McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988).

- 33 -

If an employer acts reasonably in determining its legal obligation, its
action cannot be deemed willful under either petitioner's test or under
the standard we set forth. If an employer acts unreasonably, but not
recklessly, in determining its legal obligation, then . . . it should not
be so considered under Thurston or the identical standard we approve
today.145
The determination of willfulness is a mixed question of law and fact.146
At the outset, I note that, in their brief in opposition, Plaintiffs failed to
oppose the issuance of summary judgment on this ground. Plaintiffs can therefore
be deemed to have abandoned any argument in favor of a willful violation by
Defendants, and thus any request for a three year statute of limitations.147
However, even reaching the merits of this issue, I note the utter paucity of any
evidence from which a reasonable jury could find, by a preponderance of the
evidence, that Defendants either knew or suspected that their practices were
violative of the FLSA or recklessly disregarded the possibility of same. Plaintiffs
have failed to provide any such citations. Furthermore, and as exemplified above,
there are no decisions in the Third Circuit concerning whether the donning and
doffing of similar PPE or the joint changeover meetings are “integral and

145

Id. at 134 n. 13.

146

Lugo v. Farmer’s Pride Inc., 802 F.Supp.2d 598, 618 (E.D.Pa. 2011)(Baylson, J.)(citing
Alvarez v. IBP, Inc., 339 F.3d 894, 908 (9th Cir. 2003)).

147

Bowser v. Bogdanovic, Civil Action No. 08-CV-847, 2010 WL 1462548 (M.D. Pa. Apr. 9,
2010) (“[W]hen the moving party argues that summary judgment should be granted in its
favor regarding a certain claim, the non-movant abandons that claim by failing to address it
in his response to the motion for summary judgment.”) (citing Seals v. City of Lancaster, 553
F.Supp.2d 427, 432-33 (E.D. Pa. 2008)).

- 34 -

indispensable” to the principal activity of drilling oil and gas wells.148 Summary
judgment is therefore granted to the extent Plaintiffs allege a willful violation of
the FLSA, and the applicable statute of limitations is two years.
B.

Plaintiffs’ Motion for Partial Summary Judgment

Plaintiffs have also moved for partial summary judgment in this action. This
concurrent resolution of cross-motions for summary judgment, as are presented
here, “can present a formidable task.”149 Indeed, such circumstances may, in some
instances, require separate opinions on the respective motions.150 In this case,
however, whether the facts are viewed in the light most favorable to the Plaintiffs
or the Defendants, the same essential narrative unfolds. Consequently, the present
cross-motions for summary judgment will therefore both be decided in this
Memorandum Opinion and accompanying Order.151

148

See Lugo v. Farmer’s Pride Inc., 802 F.Supp.2d 598, 618 (E.D.Pa. 2011)(finding that the
“absence of binding Third Circuit precedent on whether donning and doffing PPE is integral
and indispensable to the principal activity of poultry processing is relevant to a finding that
Defendant did not willfully violate the FLSA”).

149

Interbusiness Bank, N.A. v. First Nat'l Bank of Mifflintown, 318 F.Supp.2d 230, 235
(M.D.Pa. 2004) (Conner, J.) (citing 10A Charles Alan Wright et al., Federal Practice and
Procedure § 2720 (3d ed.1998)).

150

See Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968); United States v.
Hall, 730 F.Supp. 646, 648 (M.D.Pa. 1990)(Nealon, J.).

151

See Interbusiness Bank, 318 F.Supp.2d at 236 (relying on the mandate of Fed.R.Civ.P. 1 that
the Federal Rules of Civil Procedure “shall be construed and administered to secure the just,
speedy, and inexpensive determination of every action” in concurrently deciding crossmotions for summary judgment in a single opinion).

- 35 -

In their Motion for Partial Summary Judgment, Plaintiffs move for the
judgment on liability, arguing that: (1) pre-shift and post-shift donning and doffing
constituted work and was compensable, and (2) all the time walking to and waiting
for pre-and post-shift safety/changeover meeting constituted work and was
compensable under the continuous workday rule.152 In the alternative, Plaintiffs
argue that, even if not compensable pursuant to the continuous workday rule, all
time spent in mandatory safety meetings is otherwise compensable work.153 First, I
note that Plaintiffs’ Motion for Partial Summary Judgment, to the extent premised
on the compensability of pre-shift and post-shift donning and doffing and walking
time to pre-and post-shift safety/changeover meeting is hereby denied.
In their Motion for Partial Summary Judgment, Plaintiffs argue, in essence,
that summary judgment is appropriate because both the Third Circuit and Supreme
Court have recognized that donning and doffing of personal protective gear to be
compensable work.154 If Defendants’ interpretation of the law on this subject is too
narrow, Plaintiffs’ interpretation is undoubtedly too broad. A closer reading of
both the Third Circuit’s decision in DeAsencio v. Tyson Foods, Inc.,155 and the

152
153

Pls.’ Memorandum of Law in Supp. of its Mot. for Partial Summ. J. (ECF No. 248) at 4.
Id.

154

Id. at 7.

155

500 F.3d 361, 373 (3d Cir. 2007).

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Supreme Court’s decision in Sandifer v. United States Steel Corp.,156 two decisions
cited by Plaintiffs, dispels this argument.
For example, in DeAsencio, a pre-Busk case, the Third Circuit held that, in
determining whether donning and doffing in a chicken processing plant was
otherwise compensable, the District Court committed error by instructing the jury
that “work” necessarily required a “sufficiently laborious degree of exertion.”157
Our Court of Appeals, however, also wrote, to the detriment of Plaintiffs’
argument, that “preliminary or postliminary work is non-compensable under the
Portal-to-Portal Act if the work is not ‘integral and indispensable’ to [the]
‘principal activit[ies]’ of a given job.”158 The Third Circuit thereafter noted that
the defendant had withdrawn “any defense that, if work, donning or doffing was
not integral or indispensable,” and remanded the case to the District Court to
determine the preclusive effect of that withdrawal.159 It did not therefore rule that

156

134 S.Ct. 870 (2014).

157

500 F.3d at 373.

158

Id. (citing Alvarez, 546 U.S. at 37).

159

Id. Furthermore, in Smiley v. E.I. Dupont De Nemours and Company, 839 F.3d 325, 327-28
(3d Cir. 2016), the Third Circuit did not hold or address whether donning and doffing PPE
was per se compensable, but rather whether compensation for meal breaks could be offset
against overtime liability paid for donning and doffing. Indeed, in the District Court, the
parties disputed, but the court assumed without deciding, that the plaintiffs’ donning and
doffing of personal protective equipment are compensable activities under the FLSA. See
Smiley v. E.I. Dupont de Nemours and Co., No. 12-CV-2380, 2014 WL 5762954, at *8 n. 10
(M.D.Pa. Nov. 5, 2014)(Munley, J.).

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donning and doffing of personal protective equipment was per se compensable
sans an integral and indispensable analysis.
Furthermore, Plaintiffs cite Sandifer v. United States Steel Corp., in which
the Supreme Court stated in what is admittedly dicta, that:
Because this donning-and-doffing time would otherwise be
compensable under the Act, U.S. Steel’s contention
of noncompensability stands or falls upon the validity of a provision
of its collective-bargaining agreement with petitioners' union, which
says that this time is noncompensable.160
However, in Sandifer, the employer was not arguing that changing clothes and
washing were not otherwise compensable activities. Rather, the employer argued
that the collective bargaining exception set forth in 29 U.S.C. § 203(o) applied
regardless of whether donning the gear was required by law, the employer or the
nature of the work.161 Thus, whether donning or doffing the protective gear would
have been compensable absent 29 U.S.C. § 203(o) was irrelevant to the Court’s
analysis.162 This case therefore offers little guidance here.
Rather, as expressed above, the compensability of the instant donning and
doffing of PPE hinges on an “integral and indispensable” analysis as more fully
explained above. I further note that, with all facts viewed in the light most
favorable and all reasonable inferences made in favor of the non-moving party—

160

134 S.Ct. 870, 874 (2014).

161

Id. at 876.

162

Id.

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Plaintiffs, I found that, because there exists a genuine dispute of material fact
concerning Plaintiffs’ compensation claim for donning/doffing and walking time,
summary judgment in Defendants’ favor was not appropriate. Plaintiffs Motion
for Partial Summary Judgment, premised on the same factual scenario and with all
reasonable inferences drawn in favor of Defendants,163 is denied.164
Plaintiffs also move for summary judgment on an independent and
alternative premise. Specifically, to the extent not swept into compensable time by
the continuous workday rule, Plaintiffs request that this Court hold that time spent
by employees in pre and post-shift safety meetings and crew changeover meetings
constitutes “work” and is otherwise compensable.165 In support of their
compensation claim for pre-shift meetings, Plaintiffs argue that all Precision
employees attended mandatory pre-tour safety meetings prior to mid-2010, but

163

When presented with cross motions for summary judgment, each movant must show that no
genuine issue of material fact exists; if both parties fall to carry their respective burdens, the
court must deny the motions. See Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1023 (3d
Cir.2008).

164

Further preventing the issuance of summary judgment in favor of Plaintiffs is the genuine
dispute of material fact concerning the time spent donning and doffing this non-unique
personal protective equipment. Cf. Decl. of Jim Christensen (ECF No. 242-3) ¶ 11 with Dep.
of Rodney Tyger (ECF No. 242-17) at 101:22-103:2. See, e.g., Alvarez v. IBP, Inc., 339 F.3d
894, 904 (9th Cir. 2003)(finding that “donning and doffing” of non-unique protective gear
may constitute compensable work activity but for the de minimis time associated therewith).

165

Pls.’ Memorandum of Law in Supp. of its Mot. for Partial Summ. J. (ECF No. 248) at 26.
“Work,” however, does not render the safety meetings compensable. Rather, like above, the
Court must find them to be “integral and indispensable” to a principal acitivity. See Bonds,
2015 WL 5602607, at *10.

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retroactive payment was only provided to Pennsylvania employees.166 In response,
Defendants aver that summary judgment is not appropriate on this claim because
(1) it was neither alleged in the complaint nor conditionally certified, and (2) time
spent in pre-shift meetings is nevertheless non-compensable.167
Having reviewed the operative Amended Complaint in this action and the
Memorandum and Order of this Court certifying the instant collective, I am in
agreement with Defendants that this claim for compensation for pre-shift safety
meetings is beyond the scope of alleged violation. Indeed, in the Amended
Complaint, and in addition to the alleged donning and doffing violations, Plaintiffs
allege the following Portal-to-Portal Act violations:
36. After donning at the Reporting Location the PPE mandated by
Defendants and/or OSHA, Named Plaintiffs and Plaintiffs were and
are required to walk to the safety meeting location (“Meeting
Location”).
37. Defendants did and do not compensate Named Plaintiffs and
Plaintiffs for anytime they spend walking from the Reporting
Location to the Meeting Location or for any time spent from the
moment Named Plaintiffs and Plaintiffs don their gear until the safety
meeting starts at the Meeting Location (15 minutes before the official
“start” time of the shift).
38. At the end of the shift, Defendants require that Plaintiff and
Named Plaintiffs attend a safety meeting.
39. Moreover, Defendants stop paying Named Plaintiffs and Plaintiffs
at the official end time of their shift, even though the safety meeting

166
167

Id.
Defs.’ Br. In Opp. To Pls.’ Mot. for Partial Summ. J. (ECF No. 262) at 29.

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typically lasts at least 5-10 minutes beyond the end-time of the
shift.168
Moreover, in their Brief in Support of Conditional Certification, Plaintiffs moved
to certify the following allegedly violative practices:
(1) Defendants’ failure to pay hourly rig employees for time spent
donning and doffing PPE; (2) Defendants‟ failure to pay hourly rig
employees for time spent walking to and from the donning and
doffing location to the safety/changeover meeting location; and (3)
Defendants’ failure to pay hourly rig employees for time spent in
post-shift safety/changeover meetings.169
Based on this representation, and finding that the necessary showing had been
satisfied, the Court conditionally certified this collective on January 7, 2013.170
Under Federal Rule of Civil Procedure 8, a complaint must provide a
defendant with “fair notice of what the plaintiff's claim is and the grounds upon
which it rests.”171 Here, even when construing the Amended Complaint in the light
more favorable to Plaintiffs, the Court nevertheless finds that any independent
claim172 for the compensability of these pre-shift safety meetings is absent. Further
complicating the matter, and removing any fair notice to Defendants of this claim,

168

Am. Compl. (ECF No. 8) ¶¶ 36-39.

169

See ECF No. 24, at 7.

170

See ECF No. 49.

171

Williams v. New Castle County, 970 F.2d 1260, 1265–66 (3d Cir.1992) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)).

172

I am cognizant, however, that any claim for uncompensated time spent in such pre-shift
meetings would be rendered compensable under the continuous workday rule if a reasonable
jury renders the donning and doffing of the instant PPE “integral and indispensable.”

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is the fact that the Plaintiffs upon which the conditional certification decision was
rendered were Pennsylvania employees who admittedly received retroactive pay
for these meetings.173 Therefore, because Plaintiffs cannot raise a claim for the
first time following the close of discovery and at the summary judgment stage,
Plaintiffs’ motion concerning the compensability of this time is denied.174
Plaintiffs are similarly not entitled to summary judgment on their claim for
the compensability of time spent in post-shift safety meetings.175 In their Motion,
they aver that, although Defendants did not record the time hourly rig hands
departed the site after attending safety meetings, they move for a ruling that the
time spent in such meetings constitutes “work” and thus is compensable.176 In
response, Defendants argue that they have adduced evidence suggesting that these

173

See Pls.’ Memorandum of Law in Supp. of its Mot. for Partial Summ. J. (ECF No. 248) at
26(“All employees attended mandatory pre-tour meetings prior to mid-2010, but employees
working outside Pennsylvania were never paid retroactively for all meetings.”); see also Am.
Compl. (ECF No. 8) ¶ 24 (“Named Plaintiffs worked for Precision Defendants at their
location in Williamsport, Pennsylvania.”).

174

See Martsolf v. JBC Legal Grp., P.C., No. 04-CV-1346, 2008 WL 275719, at *2 n.5
(M.D.Pa. Jan. 30, 2008)(citing Tome v. Harley Davidson Motor Co., No. 1:CV-06-2155,
2007 WL 3125090, at *7 (M.D.Pa. Oct. 24, 2007); Shingara v. Skiles, No. 1:04-CV-0621,
2007 WL 210800, at *3 n. 5 (M.D.Pa. Jan. 24, 2007); Protocol Elecs., Inc. v. Transolutions,
Inc., No. Civ. 03-4162, 2005 WL 1106132, at *5 (D.N .J. Apr. 29, 2005); Krouse v. Amer.
Sterilizer Co., 126 F.3d 494, 499 (3d Cir. 1997).

175

I note that Defendants argue rather extensively that a post-shift safety meeting is not common
to the collective as a whole. See Defs.’ Br. In Opp. To Pls.’ Mot. for Partial Summ. J. (ECF
No. 262) at 27. Indeed, in the brief in support of their motion for summary judgment,
Defendants argue that they will be moving to decertify the collective on this ground. See
Defs.’ Br. in Supp. of Mot. for Partial Summ. J. (ECF No. 241), at 1 n. 1. This commonality
argument is properly reserved for that vehicle.

176

See Pls.’ Memorandum of Law in Supp. of its Mot. for Partial Summ. J. (ECF No. 248) at 27.

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meetings rarely ran late. Furthermore, if these meetings did run late, it was in a de
minimis amount of time, and was often offset by meetings that ended early.177 This
dispute concerning the compensability of this time under the de minimis doctrine is
confirmed by the declarations of rig managers Jim Christensen, Shayne Klepper,
Cody Neufeld, and Dale Quigley.178 In denying summary judgment on December
18, 2012 prior to the conclusion of discovery, I noted that “[t]he parties also
dispute the amount of time plaintiffs spent in end-of shift meetings and how often
those meetings extended past the official shift end time.”179 Because this dispute
remains following the conclusion of discovery, summary judgment concerning the
compensability of these meetings is improper.180
V.

CONCLUSION
Based on the above reasoning, Defendants’ Motion for Partial Summary

Judgment is granted in part and denied in part. The Motion is granted with respect
to Plaintiffs’ claim on the applicable statute of limitations.
Plaintiffs’ Motion for Partial Summary Judgment is denied in its entirety.

177

Defs. Br. in Opp. To Pls.’ Mot for Summ. J. (ECF No. 262) at 29.

178

Decl. of Jim Christensen (ECF No. 242-3) ¶¶ 8-9; Decl. of Shayne Klepper (ECF No. 242-4)
¶¶ 9-10; Decl. of Shayne Klepper (ECF No. 242-5) ¶¶ 8-9; Decl. of Dale Quigley (ECF No.
242-6) ¶¶ 12-13.

179

ECF No. 48.

180

See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946)(“[I]t is appropriate to
apply a de minimis doctrine so that insubstantial and insignificant periods of time spent in
preliminary activities need not be included in the statutory workweek.”).

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An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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