Petition for Writ of Certiorari — Precision Drilling Corp., et al., Petitioners v. Rodney Tyger, Individually and On Behalf of All Others Similarly Situated, et al.
Supreme Court briefFeb 28, 2024
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APPENDIX
TABLE OF CONTENTS
Page
Appendix A:
Opinion of the U.S. Court of
Appeals for the Third Circuit
(Aug. 16, 2023) ................................ 1a
Appendix B:
Order of the U.S. District Court for
the Middle District of
Pennsylvania (Mar. 25, 2022) ...... 13a
Appendix C:
Order of the U.S. Court of Appeals
for the Third Circuit Denying
Rehearing (Dec. 1, 2023) .............. 86a
Appendix D:
Statutory and Regulatory
Provisions:
29 U.S.C. § 251 ............................. 88a
29 U.S.C. § 254 ............................. 90a
29 C.F.R. § 790.6 ........................... 92a
29 C.F.R. § 790.7 ........................... 95a
1a
APPENDIX A
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)
_______________
2a
Justin L. Swidler [ARGUED]
SWARTZ SWIDLER
9 Tanner Street
Suite 101
Haddonfield, NJ 08033
Counsel for Appellants
Erin Mohan
[ARGUED]
UNITED STATES DEPARTMENT OF LABOR
Division of Fair Labor Standards
200 Constitution Avenue NW
Room N-2716
Washington, DC 20210
Anne W. King
UNITED STATES DEPARTMENT 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
3a
Sarah J. Miley
LITTLER 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 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.
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 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.” IBP, Inc. v. Alvarez, 546 U.S. 21, 25 (2005)
(internal quotation marks omitted).
4a
But not all work is compensable. Under the Portalto-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 employee 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 indispensable
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 principal 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.
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.
5a
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 walking 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 indispensable to what the
parties agree is their principal activity: drilling 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 District Court found that the risks here
were “ordinary, hypothetical, or isolated” and that the
gear’s protection was “incomplete.” Tyger, 594 F.
Supp. 3d at 661. So the gear was neither integral nor
indispensable to oil drilling under the Second Circuit’s
test, and the court granted summary judgment for
Precision.
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).
6a
Summary judgment is proper only when there is no
genuine dispute of material fact. Fed. R. Civ. P. 56(a).
II. DISTILLING THE RIGHT TEST
Our Court has not yet explained what makes an
activity integral and indispensable to productive
work, rather than preliminary 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 collectivebargaining 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) were
always a noncompensable preliminary activity. See
Sandifer 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,
7a
protected the workers from lead poisoning and
sulfuric-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-andindispensable “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 postliminary. Busk, 574 U.S. at 33.
Though these terms seem abstract, statutory text and
precedent give us three key factors to consider.
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 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 &
8a
n.5 (explaining that changing at home suggests
otherwise), 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 Department’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 Steiner, 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-toPortal Acts confirm that custom matters. See 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”).
At bottom, the question is whether workers have a
“meaningful 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 consider regulations about changing clothes or
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gear. Steiner highlighted a state law that required
employers to have showers if employees were
“exposed to excessive heat, or to skin contamination.”
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 regulations, especially specific
regulations, suggest that gear is integral.
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
“intrinsic” 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 generic 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 “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 Administration 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 assess its own workplace risks and choose and
require use of gear to protect against those hazards. §
10a
1910.132(d)(1). So in following 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
precedent suggests that it need not be strictly
necessary, just reasonably so. For instance, batteryplant 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 accidents.” Mitchell v.
King Packing Co., 350 U.S. 260, 262 (1956). But
security screenings for Amazon warehouse 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 dispense with it without
impairing his ability to perform the principal 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
11a
F.3d 604, 619–20 (6th Cir. 2010) (collecting cases). But
the District Court chose the Second Circuit’s
approach, which focuses on whether protective gear
guards against risks that “transcend ordinary” ones.
Perez v. City of New York, 832 F.3d at 127 (quoting
Gorman, 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 specialized risks.
So, like most of our sister circuits, we find the
extraordinary-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
beyond the scheduled working hours, such trifles may
be disregarded.” Anderson v. Mt. Clemens Pottery Co.,
328 U.S. 680, 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-andindispensable inquiry, the de minimis doctrine is factspecific, requiring “definite findings.” Id.
III. UNDER THE RIGHT TEST, THERE ARE GENUINE
FACTUAL DISPUTES
The District Court erred in granting summary
judgment because there are genuine factual disputes.
12a
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
convenience 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 changing] is de
minimis”). The record leaves these questions open. A
jury will have to decide whether the rig hands have “a
meaningful 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 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.
13a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA
RODNEY TYGER, et al.,
Plaintiffs,
No. 4:11-CV-01913
(Chief Judge Brann)
v.
PRECISION DRILLING
CORP. et al.,
Defendants.
MEMORANDUM OPINION
MARCH 25, 2022
“[A] fair day’s pay for a fair day’s work.”1 That was
the promise of the 1938 Fair Labor Standards Act. But
in practice, this promise has proven easier stated than
applied. While the Act generally requires employers
to compensate their employees for time they are
required to be at work, Congress has carved out two
exceptions, one for “travel to and from the location of
the employee’s ‘principal activity,’” and the other for
“activities that are preliminary or postliminary to that
principal activity.”2 And this case—involving a class
1 A.H Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945) (citing
Franklin D. Roosevelt, Message of the President to Congress,
May 23, 1937).
2 Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690–91
(1946); IBP, Inc. v. Alvarez, 546 U.S. 21, 28 (2005); see generally
Fair Labor Standards Act of 1938 (codified at 29 U.S.C. § 201 et
seq.); Portal-to-Portal Act of 1947, (codified at 29 U.S.C. § 254(a)).
14a
of oil rig workers seeking backpay for time spent
walking back and forth from their rigs to change in
and out of their steel-toed boots, hard hats, safety
glasses, fire retardant coveralls, gloves, and
earplugs—implicates both.
Quite a bit then hinges on what “principal activity”
encompasses. Though not defined by the statute, the
Supreme Court has determined that the term
“embraces all activities which are an ‘integral and
indispensable part of the principal activities.’” 3 The
question here is whether donning and doffing basic
personal protective equipment (“PPE”) was “integral
and indispensable” to the oil rig workers’ principal
activities. And that, as I’ll explain, turns on whether
this PPE guards against workplace hazards that
accompany those activities and transcend ordinary
risks.4
Because I find that the donning and doffing of the
basic PPE at issue here does not meet this standard,
I grant Precision Drilling and its various affiliates’
motion for summary judgment on the Plaintiff
Employees’ remaining claims under the Fair Labor
Standards Act. The Employees’ cross-motion, which
conversely asks that I find Precision Drilling liable
under the Act, is accordingly denied.
I. FACTS
Precision Drilling operates oil and gas drilling rigs.5
The work is intense—rigs are generally staffed by two
crews that alternate 12-hour drilling shifts, often for
3 Steiner v. Mitchell, 350 U.S. 247, 252–53 (1956).
4 See Perez v. City of New York, 832 F.3d 120 (2d Cir. 2016).
5 Doc. 392-2 ¶ 1; Doc. 404 ¶ 1.
15a
multiple weeks in a row—and it is not free of
hazards. 6 Indeed, these hazards, and the protection
provided by the basic PPE that Employees don and
doff each day, are now at the center of this suit.7 I’ll
begin by detailing the three types of hazards the
Employees have homed in on, before addressing the
protection this PPE provides.8
A. Hazards of the Job
1. Mechanical Risks
The Employees begin by highlighting an array of
mechanical risks their job entails, most of which
Precision Drilling acknowledges. 9 The Employees
6 Doc. 393 ¶¶ 3–5; Doc. 401 ¶¶ 3–5. Rig workers are
compensated at a time-and-a-half rate once they exceed a fortyhour workweek. Doc. 392-2 ¶ 6; Doc. 404 ¶ 6.
7 Despite rulings that have narrowed the issues in this case,
the fact-related filings exceed 100 pages. See Doc. 392-2
(Defendants’ Statement of Undisputed Facts in Support of
Renewed Motion for Summary Judgment); Doc. 393 (Plaintiffs’
Statement of Undisputed Material Facts); Doc. 401 (Defendants’
Response to Plaintiffs’ Statement of Undisputed Material Facts
on Renewed Motion for Summary Judgment); Doc. 404
(Plaintiffs’ Answer to Defendants’ Statement of Facts in Support
of Motion for Partial Summary Judgment). As a result, I have
attempted to highlight the material most relevant to the
remaining claims—with particular attention paid to material the
parties cite in their briefing. Facts relating to Precision Drilling’s
supposed take-home policy are not addressed. For a broader
treatment of the facts of this case, see Tyger v. Precision Drilling
Corp. (Tyger I), 308 F. Supp. 3d 831, 835–39 (M.D. Pa. 2018).
8 Doc. 393 at 4, 5, 7 (setting out in separate sections
“Mechanical Risks,” “Fire and Burn Risks,” and “Exposure To
Drilling Fluids and Hazardous Materials”).
9 See Doc. 401 ¶¶ 11–16. Here, Precision Drilling either
acknowledges the risk (though sometimes with the caveat the
risk is irrelevant given the type of PPE donned), id. ¶¶ 12–15, or
16a
note that their eyes may be exposed to pieces of metal,
dirt, and dust; that their hands may be “pinche[d],
burn[ed], blister[ed], bruise[d], [or scratched]”; and
that their toes may be “crushed.”10 They also describe
how they may suffer hearing loss from workplace
noise.11 And they further assert that “cementing . . .
‘can cause severe damage’”—though the Employees
leave the magnitude of these risks, and the
particularities of the cementing process, otherwise
unexplained.12 In addition, the Employees’ statement
of facts delves into how during “tripping pipe”
operations they are again exposed to danger when
they lift, by elevator, drilling materials weighing in
the thousands of pounds before “lower[ing] [them] into
the bore hole for drilling.”13
The Employees relatedly claim that objects may be
dropped on their head, with deadly consequences.14
emphasizes that these are the sort of “hazards and risks that
exist in industrial workplaces and construction sites generally,
not hazards and risks that are an intrinsic element of drilling oil
and gas wells.” Id. ¶¶ 11, 16.
10 Doc. 393 ¶¶ 11, 15–16 (detailing risk to the eyes and hands);
Doc. 401 ¶¶ 11, 15–16 (same); Doc. 395 at 12–13 (admitting the
risk to workers’ toes).
11 Doc. 393 ¶ 16; Doc. 401 ¶ 16; Doc. 242 at 22:8–9 (Deposition
Testimony of Michael Adkins) (“Earplugs protect workers from
hearing loss.”). The Employees delve further into this risk in
their response to Precision Drilling’s statement of facts. See Doc.
404 ¶ 43 (citing Doc. 242-14 at 29:21–22) (Deposition Testimony
of Brian Shulte) (“I’m deaf because I didn’t wear [ear protection]
because it wasn’t a rule.”).
12 Doc. 393 ¶ 14; Doc. 401 ¶ 14.
13 Doc. 393 ¶ 12; Doc. 401 ¶ 12.
14 Doc. 393 ¶ 13.
17a
The Employees at first rested this assertion on a
statement in Precision Drilling’s Safety Manual:
“[t]ools dropped from a height have caused significant
injuries, including fatalities.”15 But in an attachment
to their reply brief, they now seek to bolster this claim
with documents relating to a workplace incident.16 In
particular, the Employees highlight three documents
showing that in 2014, a North Dakota-based rig hand
was struck by a pin that fell some 80 feet, causing him
a serious brain injury.17
Beyond this North Dakota incident, the Employees’
reply brief attachment also highlight two other
accidents, both of which are unrelated to drop risks
but seem to fall within the broad ambit of “Mechanical
Risks.”18 One attachment, a Canadian court decision,
describes a 2010 incident in Alberta, Canada, where a
rig hand died from blunt force trauma and cranial
fractures during a work process called “tripping
out.” 19 At the same time, two other attachments
center on an incident that occurred in the mid-2010s,
15 Doc. 282-1 at 170.
16 See Doc. 405-1; Doc. 405-2; Doc. 405-3; Doc. 405-4; Doc. 405-
5; Doc. 405-6. Precision Drilling objects to the consideration of
these documents under the summary judgment standard’s
admissible evidence requirement. Doc. 406 at 9.
17 See Doc. 405-1 (Precision Drilling’s Root Cause Incident
Assessment for Robby Williams Incident); 405-2 (Precision
Drilling’s Preliminary Investigation Details for Robby Williams
Incident; Doc. 405-5 (Deposition Testimony of Robby Williams).
18 Precision Drilling raises the same admissible evidence
objection to these documents as well. Doc. 406 at 9–11.
19 Doc. 405-4.
18a
when a rig hand died after being backed over by a
front loader.20
2. Fire and Burn Risks
The second category that the Employees highlight is
fire and burn risks. 21 To start, the Employees
emphasize the risk of blowouts, leading to “violent”
and “uncontrolled” releases of gas, which in their view
create both an “explosion” and “burn risk.”22 Precision
Drilling takes issues with a few parts of this claim.
For one, it contends that the Employees garble the
mechanism of the risk, emphasizing correctly that
nothing in the testimony that the Employees cite
discusses the “risk of explosion.” 23 The Company
further clarifies “that there is not burning risk from
20 Doc. 403-3 (Deposition Testimony of Caleb White in suit
brought by David Dunn); Doc. 403-6 (Deposition Testimony of
Dale Quigley in suit brought by David Dunn).
21 Doc. 393 at 5.
22 Id. ¶ 17.
23 Doc. 242-9 at 82:3-14 (Deposition Testimony of Rig Manager
Shayne Klepper).
Q. What is a blow-out?
A. A blow-out is an uncontrolled release of the oil or the
drilling fluid out of the well.
Q. Okay. And have you ever been on a rig where that’s
happened?
A. No. Blow-out is bad.
Q. Sure. Is it pretty rare?
A. In Precision Drilling, yes.
Q. Okay.
Id.
19a
drilling fluid in a blowout,” the risk, rather, comes
only “from the gas that follows it.”24 Second, Precision
Drilling adds that the Employees’ descriptions lack
context and stresses that the cited testimony states
that blowouts are “rare.”25 Indeed, neither party has
drawn the Court’s attention to evidence of this sort of
event happening on a Precision Drilling rig.
The Employees also note the potential fire and burn
risks from diesel fuel, a flash fire causing
“combustible” added to oil-based drilling muds, which
Precision Drilling uses to lubricate drill bits, remove
drilling tailings (rocks and dirt) from the well bore,
and prevent well collapses during drilling. 26 To
support their assertion, the Employees tie together
Precision Drilling’s Vice President of Operations’
declaration that a common type of drilling mud is an
oil-based mud (with the base often being diesel fuel),
and a Company Material Safety Data Sheet that
states: “WARNING! Combustible liquid and vapor. –
Can cause flash fire.” 27 But Precision Drilling has
24 Doc. 401 ¶ 17. As I’ll explore later, Precision Drilling further
contends that “none of the basic PPE protects against exposure
to vapors. Only a respirator which is donned on the clock
provides such protection.” Id.
25 Id. (noting that in Shayne Klepper’s Deposition testimony,
Doc. 242-9 at 82, he confirmed that blowouts are rare).
26 Doc. 393 ¶ 19 (alleging that the drilling mud is a
combustible that can cause flash fires); Doc. 242-1 ¶ 9
(Declaration of Michael Skuce, Precision Drilling Vice President
of Operations) (detailing the purpose of drilling muds).
27 See Doc. 242-1 ¶ 10 (“Precision Drilling rigs can use several
different types of drilling mud. The two most common types of
drilling mud are referred to generally as Oil-Based Mud, and
Water-Based Mud. Oil-Based Mud . . . is a generic term used to
refer to drilling mud that contains some type of chemical
20a
qualms with theory as well. It counters that the
Employees cite nothing showing that diesel is still
combustible in drilling mud or that anyone has ever
been exposed to a flash fire from it.28
Finally, in this section the Employees return to the
risk caused by cementing (also mentioned as a
mechanical risk), emphasizing that working “with hot
liquids such as cement” may cause burns.29 But once
again, the testimony they cite does not shed any light
on how likely workers are to touch hot cement during
the process.30
Besides these risks, which the Employees highlight
in their own statement of facts, they also contend in
their response to Precision Drilling’s statement of
facts that Precision Drilling rig hands “have been
badly burned by fires.”31 In making this claim, they
cite the deposition testimony of Glenn Hoganson, a rig
compound, often oil-based, and most frequently diesel fuel.
Water-Based Mud does not contain such compounds. There are
many different types of [Oil-Based Mud], containing different
chemical compounds. The type of drilling mud used is
determined by the Operator. Not all Precision rigs use [Oil-Based
Mud], and even those that do will not necessarily use it every day
of drilling. The type of drilling mud selected for use in a
particular well on a particular day is determined by the
Operator.”); Doc. 394-4 at 17 (CITGO No. 1 Diesel Fuel, All
Grades, Material Safety Data Sheet).
28 Doc. 401 ¶ 19.
29 Doc. 393 ¶ 20.
30 See 284-3 at 59–61 (Deposition Testimony of Precision
Drilling Healthy, Safety, and Environmental Manager, Lawson
Threeton). Threeton’s cited testimony instead centers on the role
that fire retardant coveralls play in reducing this risk. Id.
31 Doc. 404 ¶ 42.
21a
hand with over three decades of experience across
some fourteen-odd drilling companies:32
Q. Have you ever seen a fire on a rig?
A. Yes, I have.
Q. And have you ever seen a fire get close to a guy
who is wearing a coverall?
A. No. We evacuated the rig and the company
men, but I have personal knowledge of the
crew that—the driller that took my job when
I left cyclone [and] went to work for Precision.
Rig 18 caught on fire. The driller, the motor
hand[,] and the floor hand were burned 90
percent of their bodies. It almost killed both of
them. They spent over two years in the
hospital. The rig burned to the ground. The
derrick went over in two and a half minutes.
Okay. These are—those two cats I’ve known
my whole adult life since I was in my
twenties.33
3. Exposure
to
Drilling
Hazardous Materials
Fluids
and
The third category of risk identified by the
Employees is their exposure to drilling fluids and
hazardous materials. 34 At a basic level, the
Employees contend that while drilling oil and gas
wells, they are exposed to drilling muds—and that
32 Doc. 242-20 at 16:21–22 (Deposition Testimony of Glenn
Hoganson) (“I had like 14 different drilling companies in the 36
years I worked”).
33 Id. at 41:12–42:3.
34 Doc. 393 at 7.
22a
these drilling muds are hazardous. 35 Their case is
built on Precision Drilling’s Material Safety Data
Sheets, its Safety Manual, and the deposition
testimony of its workers and managers.36
The Employees begin by citing the Safety Sheets of
chemicals added to the Company’s drilling mud:
Geltone V, MICA, FLR, FM WA II, barite, lime, and
diesel fuel. 37 The relevant risks posed by these
chemicals are pretty much the same. 38 The Safety
Sheets warn that the chemicals may cause skin and
eye irritation; and to address any irritation, the
Sheets
recommend
that
workers
remove
contaminated clothing, wash their skin with soap,
flush eyes their eyes with water, and seek medical
attention if the problem persists.39
35 Id. ¶¶ 23, 24, 26. The Employees make claims about each
type of drilling mud. See id. ¶ 29. They argue that “[s]o-called
‘water[-]based mud’ contains sodium hydroxide (‘caustic’) which
can cause burns to eyes, skin and respiratory tract.” Id. Though
Precision Drilling counters that “additional PPE is required
when working with caustic to avoid these harms. Doc. 401 ¶ 29.
Likewise, the Employees note that “‘synthetic[-]based mud’
exposure can be harmful to health.” Doc. 393 ¶ 29. While also
contending that “[o]il-based mud contains hydrocarbons (most
often diesel fuel) as a base and readily causes skin rashes,” and
that “‘[g]el-based’ mud contains ‘bentonite, lime, and sometimes
caustic.’” Id. But here too Precision Drilling counters additional
PPE is required “when a rig is required to mix chemicals in
drilling mud . . . .” Doc. 401 ¶ 29.
36 See Doc. 393 ¶¶ 27–47.
37 Id. ¶ 28.
38 See Doc. 394-4 at 10–32.
39 The following, in particular, were cited in the Employees’
statement of facts. See Doc. 393 ¶ 28.
23a
Geltone poses an “acute health hazard” and “[m]ay cause eye,
skin, and respiratory irritation.” Doc. 394-4 at 21. As a first
aid measure the Material Safety Data Sheet recommends to
“[w]ash [skin] with soap and water[,] [and] [g]et medical
attention if irritation persists.” Id. Likewise, in case of eye
contact, it instructs workers to “immediately flush eyes with
plenty of water for at least 15 minutes and get medical
attention if irritation persists.” Id.
MICA also poses an “acute health hazard,” as it “[m]ay cause
eye . . . irritation.” Id. at 27. Skin irritation is not listed as a
hazard, But under first aid measures, it includes for “skin,”
to “[w]ash with soap and water[,] [and] [g]et medical
attention if irritation persists.” Id. At the same time, for
“eyes” it states, “[i]n case of contact, immediately flush eyes
with plenty of water for at least 15 minutes and get medical
attention if irritation persists.” Id.
FLR “[d]ust may be irritating to the eyes. [And while it]
[s]hould not be an irritant to the skin . . . . [it] [m]ay
aggravate dermititis [sic].” Id. at 13. As a first aid measure,
the Safety Sheet recommends flushing eyes for 15 minutes,
if they are irritated, washing skin with soap and water, and
seeking medical attention if a rash develops. Id.
FM WA II “[m]ay cause irritation” to eyes and skin. Id. at 14.
The Safety Sheet notes that “[i]rritation may be become
severe with prolonged contact.” Id. Under first aid measures
for eyes, it states, “immediately flush with plenty of water for
15 minutes[,] [and then] [s]eek medical attention.” Id. For
skin, meanwhile, it says to “[w]ash with soap and water[]
[and] [r]emove and clean contaminated clothing.” Id.
Barite “[m]ay be irritating to the skin” and “eyes.” Id. at 10.
The recommended first aid measure for skin contamination
is to “[w]ash skin thoroughly with soap and water[,] [r]emove
contaminated clothing[,] [and] [g]et medical attention if any
discomfort continues.” Id. at 11. For eye exposure, the Safety
Sheet recommends to “[p]romptly wash eyes with lots of
water while lifting the eye lids[,] [c]ontinue to rinse for at
least 15 minutes[,] [and] [g]et medical attention if any
discomfort continues.” Id.
24a
The Employees also point to similar warnings in the
Precision Drilling Health Safety & Environmental
Field Reference Manual, though they encompass a
different array of chemicals. 40 For “[c]austic, lime,
soda, ash, calcium chloride, [and] chlorine,” the Safety
Manual warns, “[m]ay seriously burn the skin, eyes,
and nose membranes and the lungs.”41
The Employees include only part of the Material Safety Data
Sheet is included for lime, and thus the potential effects on
the Employees’ skin and eyes are unclear. Id. at 16. On this
front, I’ll also note that elsewhere in their statement of facts
they claim that “Lime (a mud additive listed in Precision’s
HSE Manual) causes ‘severe irritation’ to the skin, and
‘extreme irritation of eyes . . . including burning and tearing.
. .’” Doc. 393 ¶ 35 (citing Doc. 394-4 at 16). While those quotes
may well have come from a portion of the Material Safety
Data Sheet that was cut off, they do not appear in the single
page included in the exhibit that the Employees quote.
Diesel fuel “[l]iquid contact can cause eye or skin irritation.”
Doc. 394-4 at 17. The Sheet instructs to “[a]void skin
contact,” but “[i]f [the] product comes in contact with
clothing, [workers should] immediately remove soaked
clothing and shower.” Id. at 18. See also Doc. 393 ¶¶ 36–37
(highlighting the risks that this Sheet identifies).
40 See Doc. 393 ¶ 33. The Employees cite to Doc. 282; however,
the page the material appears on is actually found in Doc. 283 at
page 7. For gel and barite, Precision Drilling’s Manual warns of
the potential hazard of “[b]reathing a large amount over a long
period[, which] could cause silicosis or other respiratory
problems.” Doc. 283 at 7. As none of the PPE being battled over
in this case protects against this risk, I find this risk irrelevant.
41 Doc. 283 at 7. The chart also includes that “[c]hromate and
chrome thinners (bichromate, dichromate, and thinners such as
Spersene, Unical, or Q-Broxin)” pose a potential hazard:
“[c]hromate is absorbed through the skin and can cause
poisoning.” Id. To my knowledge, neither party has discussed
these chemicals’ role in the drilling process or shed any light on
how a worker may be exposed to them.
25a
According to the Employees, this risk of skin
irritation has been borne out. They highlight that
various “[w]orkers and managers testified that they
and others developed reactions consistent with the
warning provided on the [Material Safety Data
Sheets] when their skin was exposed to the drilling
fluids.”42 Some workers deposed (the Employees cite
six) report experiencing skin irritation themselves.43
By and large, these individuals reported getting a red
rash. 44 Three emphasized that it was itchy. 45 Two
42 Doc. 393 ¶ 41.
43 See id.
44 See Doc. 242-28 at 41:21–25 (Deposition Testimony of
Brandon Weeden) (“Q. Did you ever get invert or oil-based mud
on your skin? A. I did, yes. Q. Did it cause—sorry. Did it cause
you any health problems? A. I had a rash, like, an itchy, red rash
I used to try and—yeah, I tried to keep it off of me as much as
possible.”); Doc. 242-34 at 51:7–17 (Deposition Testimony of
Jeremy Mitchell) (“Q. We talked about the invert and oil-based
mud. Did you ever have any illness or sickness or a rash that you
related to that? A. Rash. Q. What kind of rash did you get? A. I’m
not a doctor, but it was just a rash over the outer parts of my
body. Q. And—and where was the rash? A. Arms, legs, hands,
neck area, places that would rub.”); Doc. 335-4 at 61:5–61:24
(Deposition Testimony of Jeff McWilliams) (“Q. So the coveralls
doesn’t protect you as a floorhand from drilling mud, does it? A.
Yes, it keeps—it keeps it off your skin on most occasions. Q.
Okay. But it can soak through the coverall and get on your skin?
A. Yeah, if you—like I said if you get doused yeah. Q. So you’ve
had it on your skin? A. Yes. Q. Have you ever gotten sick from it?
A. Yes. Q. Okay. Describe your sickness that you associate with
getting oil-based mud on you. A. Rash. Q. Anything—any other
symptoms? A. Not to my recollection.”); see also Doc. 242-18 at
148:21–149:11 (Deposition Testimony of Shaun Wadsworth);
Doc. 242-19 at 44:17–24 (Deposition Testimony of Robert
Goodwyn).
45 See Doc. 242-28 at 41:23 (Deposition Testimony of Brandon
Weeden) (“I had a rash, like an itchy, red rash”); Doc. 242-18 at
26a
noted that theirs often came with blisters, which
sometimes got infected. 46 And one reported an
outbreak of pimples. 47 But none sought medical
attention; their rashes seem to have simply gone
away.48
149:3–11 (Deposition Testimony of Shaun Wadsworth) (“Q. Did
it give you a rash? A. I don’t know if you would call it a rash, but
it would turn like red. Q. Okay. A. It wasn’t a rash, like itchy
rash. It would just turn red and be like a slight burning or
something, but only for a couple of minutes and then it would be
red for like a day and then it goes away.”); Doc. 242-19 at 44:17–
24 (Deposition Testimony of Robert Goodwyn) (“Q. And what
happened when you would get oil[-]based mud on your skin? . . .
. Oh, man. Bad things. Red rashes, really itchy, and then it would
dry out really bad, and then you’d get pimples, like loads and
loads of pimples.”).
46 Doc. 242-27 at 74:12–18, 77:8–78:20 (Deposition Testimony
of George Hollabaugh) (“Q. Mr. Hollabaugh, let me go back to ask
you some questions about the invert. You said—did it irritate
your skin if you got invert on your skin? A. Yes, it did. Q. What
did it do to your skin? A. Gave me rashes and blisters. . . . Q.
Other than getting rashes—and I’m not trying to minimize that,
all right, because I can imagine it could be pretty painful—any
other physical effects that you suffered as a result of being
exposed to invert? A. If you had any cuts or open wounds, they
would get infected, and you usually weren’t able to get them
cleared up until you had some time off. Q. And the only thing you
were able to do to treat the rash was to put baby oil on it? A. Baby
oil, you know, and when you got off, make sure you’re bathing
and scrubbing and taking care of yourself.”).
47 Doc. 242-19 at 44:17–24 (Deposition Testimony of Robert
Goodwyn).
48 See Doc. 335-4 at 61:25–62:3 (Deposition Testimony of Jeff
McWilliams) (“Q. How did you treat the rash? A. I didn’t. Q. Did
it go away? A. Yeah. Just deal with it.”); Doc. 242-18 at 149:7–11
(Deposition Testimony of Shaun Wadsworth) (“It wasn’t a rash,
like itchy rash. It would just turn red and be like a slight burning
27a
These rig workers’ experience is confirmed by their
compatriots, and their bosses. 49 For instance, in
Precision Drilling Rig Manager James Christensen’s
deposition testimony, he acknowledged that “some
people are really susceptible to rashes and whatnot,”
so the Company supplies them with a barrier cream
that acts as “a second skin that stops any sort of
chemicals from attacking your skin.” 50 Meanwhile,
veteran rig hand Glenn Hoganson spoke about his
brother seeing a doctor after a drilling fluid-caused
rash gave him blisters, which were then infected; in
the end, however, he had no lasting ill-effects. 51
or something, but only for a couple of minutes and then it would
be red for like a day and then it goes away.”).
49 See Doc. 242-21 at 124:13–22. (Deposition Testimony of
Michael Volkman) (“Q. Michael, did you ever work with anybody
that go skin rashes? A. Ethan and Bradley Howard, two
Louisiana boys, they broke out pretty good from the invert mud.
Q. That was from the mud? A. Yeah. We had like a specialty
cream on the rig. It would them guys for the rash. I was a
fortunate one that didn’t break out from the stuff. Those guys,
yeah, they were pretty rough there a couple of days.”); Doc. 3355 at 52:22–25 (Deposition Testimony of Precision Drilling Rig
Manager Beau Turner) (“Q. Have you seen anyone on your crews
get a skin rash from working with invert? A. I’ve seen people with
a skin rash believed to be caused from invert, yes.”).
50 See Doc. 242-11 at 30:15–32:9 (Deposition Testimony of
Precision Drilling Rig Manager James Christensen).
51 See Doc. 335-5 (Deposition Testimony of Glenn Hoganson).
Though I’ll note that it’s not clear that this infection occurred on
a Precision Drilling rig—Hoganson reported having worked for
some 14 companies over his three-plus decade career:
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?
28a
Hoganson also claimed that invert mud “inflamed”
some rig hands’ hair follicles and caused other rig
hands’ cuticles to split, which in his view “allow[ed] a
passageway for getting to [their] bloodstream” and
resulted, once, in “a guy’s hand [getting] really bad.”52
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 little gruff from my parents
over it.
Q. And you believe that—did some doctor tell you that was
related to getting invert on him?
A. It was caused by invert. It was on his wrist and on his
ankles where the skin got exposed and he got blisters and
then the blisters got infected. And, of course, we’re working
14 days and he was working motors for me and I put pressure
on him to just salve it up and throw a Band-Aid on it, it will
be okay.
Q. And he got an open would and it got infected?
A. Yep.
Q. And did he recover from that?
A. Oh, yeah. And then we learned about always wearing
more protective clothing doing certain things and the
importance of changing your coveralls and stuff immediately
instead of leaving them dirty on you. . . .
Id. at 23:6–24:10.
52 Id. at 130:8–24. Precision Drilling contends that in making
these statements, Mr. Hoganson was responding to a
hypothetical. See Doc. 406 at 16–17. That’s true. See Doc. 242-20
at 130:8–9 (“Q. Glenn, what would invert do to your nails if you
were exposed to invert and you weren’t wearing rubber gloves
underneath work gloves[?]”). My read of his testimony is that he
believed that doing so would allow mud into rig hands’
bloodstream, but that workers’ cuticles cracking and hair follicles
becoming inflamed was something he had witnessed firsthand.
29a
For the most part, Precision Drilling acknowledges
that the workers may experience a rash from the
chemicals added to drilling mud. 53 The Company
instead takes issue with the Employees’ claims at the
margin.54 For instance, it emphasizes that exposure is
not universal: not every rig uses oil-based drilling
mud—and when the rig does, not every worker is
exposed.55 Precision Drilling further contends that its
workers are required to wear additional PPE when
they are exposed to significant amounts of drilling
mud or hazardous quantities of concentrated
chemicals, such as when they mix the chemicals. But
above all else, the Company maintains that when a rig
does use chemical-based drilling mud, the Employees’
day-to-day exposure is not hazardous.56
See id. at 130:11-17 (“A. Well, I’d like to use OMG there, because
right now what you’re doing is you’re allowing a passageway for
getting to your bloodstream, because cuticles will split and fall
apart and they’ll actually start bleeding and it will get so bad
that you can’t hard—I mean, I’ve seen it where a guy’s hand got
really bad. Plus it will get in your hair [and your] follicles can get
inflamed.”).
53 See Doc. 401 ¶ 41 (“Some rig hands have had skin rashes as
a result of exposure to oil-based drilling mud. Some workers on
some rigs have reported skin irritation from exposure to oilbased drilling mud, including rashes, from which their PPE does
not provide protection.”).
54 Id.
55 Id. ¶¶ 24–25, 41.
56 See e.g., id. ¶¶ 29, 31, 33–45. The Employees do not admit
to these claims. They first counter that when Precision Drilling’s
rigs use oil-based mud, they do so every day. Doc. 404 ¶ 31. As
evidence, they posit, “rig hands received oil[-]based mud pay for
every day oil-based mud was present, indicating that rig hands
worked with oil[-]based mud each day it was present on site.” Id.
Beyond being a bit circular, this claim appears to be on a
30a
The disagreement is starker on the Employees’
remaining claims, which unlike their skin irritation
claims, cite only to Material Safety Data Sheets. To
start, the Employees assert that the Company’s “rigs
regularly use chemicals in drilling mud such as ‘EZ
Mul’ and ‘Baraklean.’ [And that] [p]rolonged or
repeated exposure to Baraklean may cause testicular
toxicity, embryo and fetus toxicity.” 57 This claim
seizes on a statement listed under the “chronic effects”
of Baraklean on its Safety Sheet.58
Similarly, the Employees point to the Safety Sheet
for FM Vert Mud/Slurry for a few other broad
different track: Precision Drilling does not claim that it doesn’t
use oil-based mud consecutively when it is used, rather the
Company is claiming that it’s not always used—which is beyond
dispute. The Employees likewise contend that workers exposure
does not vary, pointing to the fact that drillers (who Precision
Drilling claimed were less likely to be exposed) “received the
same amount of oil[-]based mud pay as any other rig hand when
working with oil[-]based mud.” Id. ¶ 37. And because Precision
Drilling’s “purported justification for oil[-] based mud pay is a
non-wage expense reimbursement (as opposed to hazard pay). . .
. [Precision Drilling’s] factually binding justification for such oil[]based mud pay indicates that drillers are therefore equally as
likely to be exposed to oil [-]based as any other position on the
rig.” Id.
57 Doc. 393 ¶ 42 (quoting Doc. 287-1 at 71).
58 See Doc. 287-1 at 71 (listing the toxicological information for
Baraklean). While the Employees provide no citation directing
the court to the Safety Sheet for the chemical EZ Mul, it can be
found
in Doc.
288-1
at
12–17.
Under
“Chronic
Effects/Carcinogenicity” it lists that “[r]epeated overexposure
may cause liver and kidney effects,” but it contains no such claim
about reproductive toxicity. Id. at 14. Still, it does note that it
may cause skin irritation and severe eye irritation upon contact.
Id.
31a
declarations. 59 First, they assert that “[e]xposure to
drilling fluids on Precision rig sites may present ‘eye
irritation,’ ‘skin and mucous membrane irritation,’
‘gastrointestinal distress,’ ‘nervous system effects
such as drowsiness, dizziness, headaches, nausea or
blurred vision.’”60 Then they contend that breathing
in this chemical “may cause serious lung damage.”61
And finally, the Employees quote the following Safety
Sheet claim:
[The] [c]hronic effects of exposure to oil[-]based
drilling muds include “dermatitis and/or kidney
damage from prolonged exposure. Some
components of diesel have been determined to
cause skin tumors and/or cancers in laboratory
mice, but the effect on humans has not been
determined. May be harmful if inhaled over
long periods of time.”62
In response, Precision Drilling first reiterates that
this exposure, given the varied approaches rigs take,
would not be universal. 63 But the Company also
emphasizes that the Employees “cite to no evidence in
support of the proposition that Precision rigs
regularly use the cited chemicals in drilling mud,” or
that “any plaintiff have ever been exposed to cited
chemicals, [or] exposed in amounts in amounts that
would result in the recited health hazards.”64 In sum,
59 Doc. 393 ¶¶ 43–44 (citing Doc. 286-2 at 1).
60 Id. ¶ 43.
61 Id. (internal quotation omitted).
62 Id. ¶ 44.
63 Doc. 401 ¶¶ 43–45; Doc. 392-2 ¶ 31.
64 Id.
32a
Precision Drilling contends that the Employees fail to
show that they have even been exposed to these
chemicals—to say nothing of chronic exposure that
would result in reproductive toxicity, kidney damage,
or the skin tumors observed in lab mice. 65 Indeed,
some of the risks that the Employees highlight here—
that FM Vert Mud/Slurry may cause “‘gastrointestinal distress,’ ‘nervous system effects such as
drowsiness, dizziness, headaches, nausea or blurred
vision,’” or that it “may cause serious lung damage . . .
if inhaled over long periods of time”—are simply not
relevant when the PPE that they are seeking
compensation for donning and doffing does not protect
against the risk of ingesting or breathing in this
chemical.66
B. The PPE
Given the many hazards of their workplace, the
Employees wear PPE. Now, some of that gear is not at
issue here because it is specialized PPE that is donned
and doffed on the clock. For instance, during “‘tripping
pipe’ operations . . . the derrickhand works in an
elevated monkeyboard and is harnessed with a 60
[foot] fall protection rope.” 67 Likewise, when
Employees are tasked with mixing chemicals in
drilling mud, they are “normally required to wear
rubber gloves and [a] rubber apron . . . , [and] may also
wear a face shield and a respirator.”68 Similarly, if the
Employees’ particular task exposes them to
65 See id.
66 Doc. 286-2 at 1.
67 Tyger I, 308 F. Supp. 3d at 837.
68 Doc. 401 ¶ 29.
33a
significant drilling fluids they don and doff
“disposable Tyvek suits or waterproof rain suits.”69
But beyond this specialized PPE, Precision Drilling
policy and Occupational Safety and Health
Administration (“OSHA”) rules require that during
day-to-day operations workers wear basic PPE: steeltoed boots, hard hats, safety glasses, fire retardant
coveralls, gloves, and earplugs. 70 Precision Drilling
denies that donning and doffing this PPE is always
done off the clock. Indeed, the Company highlights
instances when the Employees may change during a
safety meeting or changeover meeting; and it further
notes that rig hands must only have their gloves and
ear plugs with them when their shift begins.71
69 Id. ¶¶ 36, 38–39.
70 Doc. 401 ¶ 7 (“Defendants do not controvert that rig hands
are required to wear a basic set of PPE ([fire retardant coveralls],
steel-toed boots, hard hat, safety glasses, and sometimes ear
plugs and gloves) when working on the drilling rig.”); Doc. 395 at
12 (“The requirement to wear PPE flows out of OSHA’s general
industry regulations”).
71 See Doc. 401 ¶ 5 (detailing how workers may sometimes
change on the clock during safety meetings); Doc. 392-2 ¶ 26
(“Rig hands are not required to don ear plugs and gloves before
their scheduled shift begins, but must have those items with
them when working on the rig.”). The Employees, however, deny
that “pre-shift meetings were compensated before mid-2010.”
Doc. 404 ¶ 5; see also id. ¶ 14 (“It is admitted that the oncoming
crew dons PPE prior to the onset of the first scheduled meeting
of the day (when the pay day starts). By extension, Plaintiffs are
not paid for the time donning PPE. It is denied that work actually
commences at the beginning of the scheduled pay time; work
commences beforehand because employees are required to arrive
before the meeting so they can be fit for duty.”).
34a
But two things are undisputed. First, the Employees
are not always able to change on the clock. 72 And
second, when the Employees cannot change on the
clock, they spend additional uncompensated time
walking back and forth between where they change
and where they work.73
I previously summarized that this gear offers
protection against “common hazards of the worksite,
including (1) Chemicals, (2) Electric 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.”74 But
given the scramble that has ensued over the bounds
of this ten-item list, a bit more nuance is required.
1. The Basic PPE’s Protection Against
Mechanical Risks
The Employees posit that their basic PPE offers
them protection against the mechanical risks I
identified earlier—that is, drop risks,75 well cementing, 76 “pinches, burns, blisters, bruises, scratches,
[and] abrasions,”77 and “dust, falling objects, pieces of
metal, flying debris, fire, and hearing loss.”78 To build
72 Doc. 401 ¶¶ 5–6.
73 See id. ¶ 6.
74 Tyger I, 308 F. Supp. 3d at 837.
75 Doc. 393 ¶¶ 11–13.
76 Id. ¶ 14.
77 Id. ¶ 15.
78 Id. ¶ 16
35a
their case, the Employees again turn to the Precision
Drilling Safety Manual and deposition testimony.
For instance, in discussing the risk that a tool may
be dropped from a height, the Employees first point to
the testimony of rig manager, who, in response to a
question about what the Employees’ PPE protects
them from, stated, “[y]our hard hat [protects you
from] somebody dropping something on your head. I
mean, it’s pretty straightforward, I think.” 79 The
Employees attempt to reinforce this testimony by
citing the Precision Drilling Safety Manual. 80 But
Precision Drilling counters that the page the
Employees cite doesn’t support their claim that “PPE
protects against drop risks, which are potentially
fatal.”81 As it turns out, the page the Employees cite
includes only that “[t]ools dropped from a height have
caused significant injuries, including fatalities.” 82
Therefore, while this Safety Manual statements
supports their second contention, that dropped tools
may cause fatalities, it does not necessarily support
their first, that PPE protects against this risk.83
The Employees also cite the Safety Manual in
discussing the protection that PPE provides against
cementing risks—this time without the trouble
attendant to their claims about drop risks.84 To start,
79 Doc. 242-14 at 29:15–17 (Deposition Testimony of Dale
Schulte).
80 Doc. 393 ¶ 13.
81 Id.; see Doc. 401 ¶ 13.
82 Doc. 282-1 at 170.
83 See id.
84 Doc. 393 ¶ 14.
36a
the Safety Manual states, “[b]ecause cementing is
corrosive and can cause severe damage, all personnel
must be properly dressed whenever the danger of
contact exists.” 85 As a result, “[t]he following
protective equipment is essential: Safety Glasses[,]
[g]loves that completely cover the wrist area[,] [b]oots
that are fully laced[,] [and] [p]ant cuffs extending over
the boots.”86 The Manual then instructs workers that
if their “clothing becomes saturated during the
cementing process,” they should remove it, “shower or
thoroughly wash affected skin areas,” and “not wear
the clothing until it has been washed.” 87 On these
claims, Precision Drilling responds only, “[t]he cited
section . . . on necessary PPE states that it only applies
when the danger of contact exists.”88
Precision Drilling raises similarly few hackles over
the Employees’ claims drawn from deposition
testimony that “safety glasses protect from ‘pieces of
metal or dirt,’” 89 and that “PPE also protects
employees against other hazards in the working
environment, such as dust, falling objects, pieces of
metal, flying debris, fire, hearing loss, [and]
abrasions.” 90 The Company’s reply only attempts to
85 Doc. 283-1 at 1. The Employees cite to Doc. 282 for this
proposition, see Doc. 393 ¶ 14. But the relevant statement is
found in Doc. 283-1.
86 Doc. 283-1 at 1.
87 Id. (alteration omitted).
88 Doc. 401 ¶ 14.
89 Doc. 393 ¶ 11 (quoting Doc. 242-14 at 29:12–15 (Deposition
Testimony of Dale Schulte)).
90 Id. ¶ 16 (citing to Doc. 242-14 at 29:14–17 and Doc. 242-13
at 22:1–11 (Deposition Testimony of Michael G. Adkins)). In
37a
clarify that “[t]he basic PPE protects against hazards
and risks that exist in industrial workplaces and
construction sites generally, not hazards and risks
that are an intrinsic element of drilling oil and gas
wells.”91 And the Company likewise does not contest
that it “requires gloves to ‘protect against possible
pinches, burns, blisters, bruises, scratches[,] or
abrasions.’”92
Finally, there is the protection that the basic PPE
provides against the workplace accidents raised in the
Employees reply brief. 93 Given that the rig hand
survived the pin’s impact, though he suffered
“permanent disabling injuries,” the Employees claim
that it is “self-evident” the worker’s hard hat “likely
saved his life.”94 They make no claims, however, about
the protection the basic PPE may have provided to the
other two workers, one who died after being backed
response to a question from counsel, Michael Adkins replied that
the basic PPE provides the following:
The hard hat is going to protect the worker from, you know,
equipment that may be overhead that could fall. The Safety
glasses would protect the employee from flying debris. The
coveralls protect the worker in the event of a fire. The steeltoed boots protect the worker in case tools or equipment is
dropped and lands on their feet. Earplugs protect the worker
from hearing loss. The gloves protect, obviously the fingers
from the abrasion, the scratches, associated with doing work
with their hands.
Doc. 242-13 at 22:1-11.
91 Doc. 401 ¶¶ 11, 16.
92 Doc. 393 ¶ 15; see Doc. 401 ¶ 15.
93 Doc. 403 at 8–11.
94 Id. at 9.
38a
over by a frontloader and the other who died while
performing a process called “tripping out.”95
2. The Basic PPE’s Protection Against Fire
and Burn Risks
The Employees’ contention that their basic PPE
protects them against fire and burn risks—from
blowouts, the diesel fuel added to oil-based mud, and
cementing—centers
on
their
fire
retardant
coveralls.96 As one basis for this claim, the Employees
look to an OSHA enforcement policy, quoting it for the
proposition, “[f]lame retardant coveralls ‘greatly
improve[] the chance of a worker surviving and
regaining quality of life after a flash fire. [Fire
retardant coveralls] can significantly reduce both the
extent and severity of burn injuries to the body.’”97
95 See id. at 10–11.
96 See Doc. 393 ¶¶ 17–22.
97 Doc. 393 ¶ 18 (quoting OSHA Std. Interp. 1910.132, U.S.
Dept. of Lab, Occupational Safety & Health Administration,
Enforcement Policy for Flame-Resistant Clothing in Oil and Gas
Drilling, Well Servicing, and Production Related Operations,
2010 WL 1149374, at *2 (Mar. 19, 2010). The Employees object
to this OSHA statement on the grounds that it “is not an
undisputed fact, but a statement of OSHA position and so is
hearsay.” Doc. 401 ¶ 18. For the purposes of this motion, I have
proceeded as if this statement would survive this hearsay
challenge. But see Provenzano v. RLS Logistics, 2021 WL
1060439, at *10 (M.D. Pa. Mar. 18, 2021) (Mannion, J.) (quoting
Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F. Supp. 474,
482 (D. N.J. 1995), Shelton University of Medicine & Dentistry of
N.J., 223 F.3d 220, 223, n.2 (3d Cir. 2000), and Damiano v.
Scranton Sch. Dist., 2016 WL 3227254, at *3 (M.D. Pa. June 13,
2016)) (“It is well established that ‘only evidence which is
admissible at trial may be considered in ruling on a motion for
summary judgment.’ This rule is particularly applicable to
parties who attempt to rely upon hearsay statements to establish
39a
The other basis is, by now, familiar. The Employees’
statement of facts also extensively cites deposition
testimony, here of a Precision Drilling Safety
Manager. 98 In the Employees’ view, the Safety
Manager’s testimony supports their claim that “when
working with hot liquids such as cement, covering
your skin with coveralls is necessary [to] reduc[e]
burn risks” and constitutes “an ‘essential’ aspect of
Precision’s safety protocol.”99 They pad their assertion
about the fire retardant coveralls “essential” quality
by emphasizing that the Safety Manager would not
himself “do the job without fire retardant coveralls
and clothing which fully covers the skin.”100 And they
further highlight his statement that PPE is the “last
line of defense” against hazards that cannot be
engineered away.101
Precision Drilling, however, contends that these
statements mischaracterize the Safety Manager’s
testimony.102 The Company first notes that he did not
say that it was “necessary,” but rather that it was
material issues of fact in order to preclude summary judgment.
Regarding such claims, ‘[i]n this circuit, hearsay statements can
be considered on a motion for summary judgment [only] if they
are capable of admission at trial.’ . . . ‘It is not the burden of the
court, but the plaintiff, to identify which hearsay exceptions
apply.”) (internal citations omitted).
98 See id. ¶¶ 20–22; see generally Doc. 284-3 (Deposition
Testimony of Lawson Threeton).
99 Doc. 393 ¶¶ 20–21 (citing Doc. 284-3 at 59–61).
100 Id.
101 Id. The Employees also highlight that “Precision imposes a
work-rule that coveralls may not be altered as alterations reduce
the protection provided against fire and chemical burns.” Id.
102 Doc. 401 ¶¶ 20–22.
40a
“safer.”103 On this front, I’ll let the deposition speak
for itself:
Q. Would you agree that [wearing fire retardant
coveralls] is an essential component of the job
if you’re laying cement?
A. Are you saying that we couldn’t do it without
it?
Q. I’m asking if, under current—the way that—
the products that are used to lay cement, if it’s
an essential component of safety.
A. Yes.
Q. So it could—it would be unsafe to it without—
to lay cement without fire resistant clothing?
A. I would say it would be unsafer to do it with a
short sleeve shirt on rather than [fire
retardant] coveralls, yeah, but you could still
do it either way. You don’t have to have the
coveralls on. It makes the job a little safer in
case something spills on you, you know, if it’s
hot cement.
Q. You could potentially have—
A. No, it could prevent you getting burned as
serious, something like that.
Q. So if you were personally doing it, you would
want to wear those coveralls; right?
A. Yes, I would prefer to wear something long
sleeved, definitely.
Q. Something that’s fire retardant, correct, or
resistant?
103 Id.
41a
A. Yes.104
Precision Drilling also emphasizes that while the
Safety Manger agreed that PPE was the “last line of
defense,” this was not to say the basic PPE protects
against “all risks that cannot be eliminated” or that
guarding against these risks—despite any incidental
reduction in the risk of exposure the basic PPE
provides—“is the reason why [it] must be worn.”105
104 Doc. 284-3 at 60:3–61:7 (Counsel for Precision Drilling’s
form objection to the first question is omitted here).
105 See Doc. 401 ¶¶ 20–22. The Safety Manager’s testimony—
for context:
Q. And you’d agree that part of the—an important element
of target zero [accidents] would be wearing PPE, the
appropriate PPE, at all times?
A. That’s part of it.
Q. An important part of it?
A. In the way we look at safety, it’s—kind of the last line of
defense is PPE.
Q. It sounds—I’m sorry, it sounds important, but I just—I
just want to make sure that I understand your testimony.
A. Well, PPE is, you know—let’s say we have an incident
that somebody—the first thing we look at is how can we
engineer it out and keep the hazard from, you know, being
there to an employee. Then we have our administrative side,
which is our JSAs and COPs and our manuals. And then the
last thing is our PPE. That’s the—when we investigate
workplace incidents, the first thing we do is look at
engineering the issue out, or putting administrative controls,
and the last thing would be like, let’s just make everybody
wear impact gloves.
Q. So it’s the last line of defense?
A. Yes.
Doc. 284-3 at 69:17–70:16.
42a
3. The Basic PPE’s Protection Against
Exposure to Drilling Fluids and Hazardous
Materials
The Employees proceed similarly in staking out
their claim that their basic PPE protects them against
drilling muds and other chemical hazards in their
workplace, relying once more on Material Safety Data
Sheets, the Company Safety Manual, and deposition
testimony.
To start, the Employees emphasize how the Safety
Sheets “demonstrate that [the Employees] cannot
work with chemical mud additives without PPE.”106
Although there is some variation, the Safety Sheets
provide similar instructions. 107 To protect workers’
eyes against exposure, the Sheets recommend
wearing safety glasses (usually with the added
specification that the glasses have side shields) or
safety goggles; to protect workers’ skin, the Sheets
recommend clothing that will protect against repeated
or prolonged skin contact and gloves (sometimes with
the added specification that clothing be long-sleeved
and chemical resistant).108
106 Doc. 393 ¶ 28.
107 See Doc. 394-4 at 12–32.
108 Id. More specifically, the Sheets recommend:
For Barite, “suitable protective gloves if risk of skin
contact,” “dust resistant safety goggles where there is
danger of eye contact,” and “appropriate clothing to
prevent repeated or prolonged skin contact. Id. at 12.
For FM WA II, “[s]afety glasses with side shields or
chemicals goggles” and “[c]hemical resistant gloves and
coveralls with long sleeves if potential for repeated skin
contact exists.” Id. at 15.
43a
The Employees lodge a similar claim about the
PPE’s protection against oil-based mud containing
diesel fuel. 109 They highlight that the Safety Sheet
recommends that people working with diesel wear
“[s]afety glasses equipped with side shields,”
“[c]hemical goggles . . . during transfer operations or
when there is a likelihood of misting, splashing, or
spraying,” “heavy duty gloves constructed of chemical
resistant materials,” “long-sleeved fire-retardant
garments while working with flammable and
combustible liquids,” and “[a]dditional chemicalresistant protective gear . . . if splashing or spraying
conditions exist.”110
What’s more, as the Employees highlight, Precision
Drilling’s
Safety
Manual
includes
similar
111
recommendations.
One page that the Employees
cite to reiterates that “[c]hemical resistant gloves
must be worn when handling or mixing caustic, acid[,]
or other chemicals.”112 And it further provides:
For Lime, “[i]mpermeable” protective gloves, “dust
resistant safety goggles where there is danger of eye
contact. . . . [and a] face shield in case of splash risk,”
“appropriate clothing to prevent repeated or prolonged skin
contact,” and a “rubber apron.” Id. at 16.
For Geltone and MICA, “[n]ormal work gloves,” “clothing
appropriate for the work environment,” and “safety glasses
or goggles to protect against exposure.” Id. at 22, 29.
For FLR, the cited material cuts off before the section that
describes the recommended PPE. Id. at 13.
109 Doc. 393 ¶ 36.
110 Doc. 394-4 at 18.
111 Doc. 393 ¶ 31.
112 Doc. 394-3 at 10.
44a
Proper clothing provides protection against,
frostbite, sunburn[,] and chemical hazards
which may be present at the work site. At
PRECISION
DRILLING
OILFIELD
SERVICES rig and shop facilities, it is strongly
recommended that employees wear coveralls.
At minimum, employees should wear long
sleeve shirts and long pants or coveralls. . . . If
employees are wearing shorts or cut-offs and/or
a T-shirt, they must also wear coveralls.113
The Employees also turn to the Safety Manual to
support one-half of their assertion, “PPE covers
critical areas such as [the] skin, head, and eyes, and
therefore PPE protects workers by effectively
reducing the risk of skin and eye exposure to drilling
fluids”—emphasizing the Manual’s claims about eye
protection. 114 Without specifying the purpose, the
Safety Manual provides that workers must wear at
least their basic safety glasses while on the rigs.115
Though it’s worth noting that the Manual also lists
instances when heightened protection, such as safety
goggles or a face shield are required. These scenarios
include “[w]ear[ing] splash-proof chemical goggles
when handling hazardous chemical liquids, powders,
or vapors. . . . [when] cleaning with chemical solutions,
handling chemicals in the mud tanks, or any
operation that may expose the eyes to hazardous
chemicals in liquid or solid form.”116
113 Id. (emphasis omitted).
114 Doc. 393 ¶ 47.
115 Doc. 282-1 at 77.
116 Id. at 78. There is similarly a safety goggles requirement
when moving chemicals. Id. at 77. And a full face shield is
45a
To build out the other half of this assertion—that
their PPE effectively reduces skin exposure—the
Employees cull the testimony of various Precision
Drilling workers.117 The workers’ testimony supports
the Employees’ claim that they are exposed to
chemicals, which as I covered, have caused skin
irritation. 118 But their claim that this testimony
shows that the PPE does so effectively rests on shakier
ground. Just one cited worker’s testimony touches on
the topic—and he’s far from conclusive:
Q. Okay. You understand that the crew members
on the rigs can get exposed—when I say
“exposed,” I just mean that they may come
into contact via their PPE with certain
hazardous chemicals?
A. Yes.
required when rig workers are “doing any work that produces
flying particles or objects, such as chipping, scraping, buffing,
grinding, hammering, and pressure washing.” Id. (emphasis
omitted).
117 Doc. 393 ¶ 47.
118 Doc. 242-9 at 48:5–49:1 (Deposition Testimony of Shayne
Klepper) (Q. Okay. Does the—does the PPE get dirty when you’re
on the rig? A. Yes. Q. Okay. And what types of—when you say
dirty—I know that’s a word I just used. But how would you
explain it? A. You get covered in dirt, grease, oil, mud, rain water.
I mean, we work out in the elements; snow, ice. Q. Okay. You
would agree that PPE can also get exposed to drilling fluid? A.
Yes. Q. It can also get exposed to caustic chemicals? A. Yes. Q.
How often does the PPE need to be cleaned. A. They’re cleaned
every tower, every day.); Doc. 242-10 at 77:1–7 (Deposition
Testimony of Cody Neufeld) (“Q. Okay. But there’s a—there’s a—
there’s a range where you’re not gonna change your coveralls
immediately. A. Exactly. Q. But you still may come into contact
with certain contaminants? A. Yes.”); see also Doc. 242-16 at
24:14–25:16, 26:3–28:20 (Deposition Testimony of James Joyce).
46a
Q. And is that one of the purposes of the PPE[,]
to protect them from chemicals?
A. Yes.
Q. Some cause burning?
A. Yes, caustic.119
Though Precision Drilling haggles over various
items—particularly whether Employees’ citations
support their claim—their primary point of
disagreement with the Employees factual assertions
is this: “The basic PPE . . . [is] not designed to protect
rig hands from exposure to chemicals in [oil-based
mud] or from the exposure of mixing in chemicals or
additives such as caustic.” 120 Rather, the PPE is
designed to reduce the risk of hazards “present in
industrial workplaces.” 121 That, Precision Drilling
argues, is why workers don respirators, face shields,
and additional protective gloves when they mix
hazardous chemicals. And it is also why they don
additional garb when they are exposed to significant
amounts of drilling mud.122 Indeed, the same worker
who affirmed that one of the purposes of PPE was to
protect against chemical exposure later emphasized
that when workers are exposed to greater amounts of
drilling mud, they often don full Tyvek suits or
additional overalls.123 This sentiment—that while the
119 Doc. 242-9 at 45:4–19 (Deposition Testimony of Shayne
Klepper).
120 Doc. 401 ¶ 29.
121 Id. ¶ 30.
122 See id. ¶¶ 34–39, 41–45.
123 Doc. 242-9 at 49:3–22 (Deposition Testimony of Shayne
Klepper) (“A. So the way it works is you work your twelve hours.
47a
basic PPE has the incidental effect of reducing
exposure, it was not built to eliminate it—is also
revealed in a line of questioning raised by the
Employees’ counsel during a worker’s deposition:
Q. So the coveralls doesn’t protect you as a
floorhand from drilling mud, does it?
A. Yes, it keeps—it keeps it off your skin on most
occasions.
Q. Okay. But it can soak through the coverall
and get on your skin?
A. Yeah, if you—like I said if you get doused
yeah.
Q. So you’ve had it on your skin?
A. Yes.124
II. PROCEDURAL HISTORY
This case’s dense and contested factual background
is perhaps only rivaled by the peripatetic path it has
traveled since its filing in 2011. Its pre-2018
You might go through two pairs of coveralls. We also provide
them throw-away Tyvek suits if you’re doing a task that’s going
to really get you really covered in mud or the guys will wear them
cleaning in the rig too just protect their coveralls. Them are
throw-aways. So we just throw them away when we use them so
that our coveralls don’t get real dirty. Lots of guys wear rain bibs,
overalls on top of their coveralls to protect themselves a little
more from that. But, after your twelve hours is up, you would
leave your coveralls in the change shack on the floor. The crew
coming on tower would take them coveralls; wash them in a
washing machine that Precision provides and dry them; fold
them up and have them sitting there for when you come back to
work.”).
124 Doc. 335-4 at 61:5–62:3 (Deposition Testimony of Jeff
McWilliams).
48a
wanderings, which I detailed previously, are no longer
of great import, so I will not dwell on them here.125
But the same cannot be said of its journey since. In
short, this is not the first time that I have considered
whether Precision Drilling or the Employees are
entitled to summary judgment on the donning and
doffing question—and the case’s post-2018 history
and the bounds of the various rulings help determine
the outcome.
My first donning and doffing decision came in April
2018, when I denied the parties’ cross-motions for
summary judgment.126 At the time, I concluded that
there was a genuine dispute of material fact about
“the harmful nature of the drilling mud and other
chemicals” involved in the Employees’ “principal
duties.” 127 This determination had two key
components. First, I settled on a test—adopting the
approach taken by the United States Court of Appeals
for the Second Circuit in Perez v. City of New York to
assess whether PPE is “integral and indispensable.128
That is, PPE is “integral and indispensable” when it
“guards against ‘workplace dangers’ that accompany
the employee’s principal activity and ‘transcend
ordinary risks.’” 129 Second, I applied this test—
finding that because the Employees’ expert, Dr.
Ronald Bishop, was prepared to testify about the
potential health hazards posed by the chemicals
125 See Tyger I, 308 F. Supp. 3d at 834–35.
126 See id. at 840–49.
127 Id. at 847.
128 Id. at 848; see Perez, 832 F.3d 120.
129 Perez, 832 F.3d 127.
49a
involved in the drilling process, the Employees had
enough evidence to proceed to trial.130
Yet as I noted in the decision, Dr. Bishop’s expert
report was hotly contested.131 And a Daubert motion
soon followed.132
After determining that Dr. Bishop’s opinion indeed
lacked a factual foundation, I granted Precision
Drilling’s motion to exclude. While Dr. Bishop had
sought to testify about how, among other things, the
Employees’ PPE would become contaminated with
hazardous substances during the drilling process, his
conclusions were untethered.133 He had no data about
the amount of hazardous material that the Employees
were exposed to; he had no data about how much
material accumulated on the Employees’ PPE; and he
had no data about how great an Employees’ exposure
would be if they encountered this soiled PPE. 134 In
sum, his opinions were “nothing more than a hunch,”
as they just bootstrapped the existence of the
chemicals on-site to Employee danger.135
Now, as I have previewed, Dr. Bishop’s testimony
was a key component of my earlier finding that the
Employees had raised a genuine dispute about
whether their PPE guarded against workplace
dangers that accompanied their principal activities
130 Tyger I, 308 F. Supp. 3d at 848.
131 Id. at 845.
132 See Tyger v. Precision Drilling Corp. (Tyger II), 2018 WL
8414745 (M.D. Pa. Dec. 18, 2018).
133 Id. at *2.
134 Id.
135 Id.
50a
and transcended ordinary risks. So this result raised
another important question: did removing this block
send the entire tower crashing down? I therefore
ordered the Employees to show cause as to why I
shouldn’t reconsider my earlier denial of Precision
Drilling’s motion for summary judgment.136
Ultimately, I determined that expert testimony was
required to show that the Employees’ basic PPE
protected against chemicals that were in fact
hazardous.137 In reaching this finding, I likened the
case to a toxic tort, where circuit precedent requires
that plaintiffs provide expert testimony about their
chemical exposure, in both type and amount, to
advance past summary judgment.138 So, in my view,
because the Employees could only offer documentary
evidence and lay testimony after Dr. Bishop’s
exclusion, Precision Drilling was entitled to summary
judgment.139
The Employees appealed this decision, as well as my
exclusion of Dr. Bishop’s testimony and my denial of
their motion for summary judgment. 140 The United
States Court of Appeals for the Third Circuit took the
appeal, affirming my decision to exclude Dr. Bishop’s
testimony and further determining that I had not
erred in excising the Employees’ claim that Precision
Drilling had willfully violated the Fair Labor
136 Id. at *3.
137 Tyger v. Precision Drilling Corp. (Tyger III), 2019 WL
6875731, at *2 (M.D. Pa. Dec. 17, 2019).
138 Id. at *1.
139 Id.
140 Tyger v. Precision Drilling Corp. (Tyger IV), 832 Fed. Appx.
108, 109 (3d Cir. 2020).
51a
Standards Act.141 The court nonetheless vacated my
decision to grant summary judgment to Precision
Drilling. 142 But in doing so, the panel did not take
issue with my use of the Second Circuit’s donning and
doffing approach.143 Rather, they found I had erred in
concluding that the Employees could not prove that
their “work was sufficiently hazardous” without
expert testimony.144
As the Third Circuit explained, “[u]nlike in the toxic
tort context, the [Fair Labor Standards Act’s] integral
and indispensable inquiry does not require that
Plaintiffs establish a causal link between occupational
hazards and medical harm.” 145 Therefore, while
“expert testimony as to the levels of [the Employees’]
chemical exposure would certainly support [their]
case,” it was not a necessary component of a Fair
Labor Standards Act claim such that its absence
would entitle the opposing party to summary
judgment.146
But because in making this error I “never reached
the issue of whether, based on the other evidence
presented by [the Employees], donning and doffing
141 Id. at 112–13, 115.
142 Id. at 113–15.
143 Id. at 114 (“In evaluating whether the donning and doffing
of PPE in this case qualified as integral and indispensable, the
District Court adopted the inquiry set forth by the Second
Circuit, mainly, whether ‘the gear . . . guards against “workplace
danger” that accompany the employer’s principal activities and
“transcend ordinary risk.”’”).
144 Id. at 114.
145 Id.
146 Id. at 115.
52a
the basic PPE was integral and indispensable to
[their] work,” the Third Circuit did not consider the
question themselves. Instead, the panel remanded the
case. And in doing so, they instructed me to consider,
for the first time since the exclusion of Dr. Bishop’s
testimony, whether the lay testimony and
documentary evidence that the Employees were
prepared to offer would allow their claims to survive
summary judgment.147
So with this background and the Third Circuit’s
mandate in mind, I’ll again consider the parties’ crossmotions for summary judgment.
III. SUMMARY JUDGMENT STANDARD
Under Federal Rule of Civil Procedure 56, summary
judgment is appropriate if “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.” 148 That this case includes cross-motions for
summary judgment does not alter the calculus. 149
Material facts are those “that could alter the outcome”
of the litigation, “and disputes are ‘genuine’ if
evidence exists from which a rational person could
conclude that the position of the person with the
147 Id.
148 Fed. R. Civ. P. 56(a).
149 Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008)
(quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir.
1968)) (“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.”).
53a
burden of proof on the disputed issue is correct.”150 A
defendant “meets this standard when there is an
absence of evidence that rationally supports the plaintiff’s case.”151 Conversely, to survive summary judgment, a plaintiff must “point to admissible evidence
that would be sufficient to show all elements of a
prima facie case under applicable substantive law.”152
The party requesting summary judgment bears the
initial burden of supporting its motion with evidence
from the record. 153 When the movant properly
supports its motion, the nonmoving party must then
show the need for a trial by setting forth “genuine
factual issues that properly can be resolved only by a
finder of fact because they may reasonably be resolved
in favor of either party.”154 The nonmoving party will
not withstand summary judgment if all it has are
“assertions, conclusory allegations, or mere
suspicions.”155 Instead, it must “identify those facts of
record which would contradict the facts identified by
the movant.”156
150 EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d
Cir. 2010) (quoting Clark v. Modern Grp. Ltd., 9 F.3d 321, 326
(3d Cir. 1993)).
151 Clark, 9 F.3d at 326.
152 Id.
153 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
154 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
155 Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d
Cir. 2010).
156 Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311
F.3d 226, 233 (3d Cir. 2002) (quoting Childers v. Joseph, 842 F.2d
689, 694–95 (3d Cir. 1988)).
54a
In assessing “whether there is evidence upon which
a jury can properly proceed to find a verdict for the
[nonmoving] party,”157 the Court “must view the facts
and evidence presented on the motion in the light
most favorable to the nonmoving party.”158 Moreover,
“[i]f a party fails to properly support an assertion of
fact or fails to properly address another party’s
assertion of fact as required by Rule 56(c),” the Court
may “consider the fact undisputed for purposes of the
motion.” 159 Finally, although this Court “need
consider only the cited materials, . . . it may consider
other materials in the record.”160
IV. ANALYSIS
Before analyzing whether the Employees have come
forward with enough evidence for a reasonable
factfinder to conclude that their basic PPE guards
against workplace dangers that accompany their
principal activities and transcend ordinary risks, I
must first address a threshold claim. This claim
centers on the scope of the Third Circuit’s decision—
which the Employees assert not only prevents this
Court from entering summary judgment in Precision
Drilling’s favor but requires that they be granted
summary judgment instead.
157 Liberty Lobby, 477 U.S. at 252 (quoting Schuylkill &
Dauphin Imp. Co. v. Munson, 81 U.S. 442, 448 (1871)).
158 Razak v. Uber Techs., Inc., 951 F.3d 137, 144 (3d Cir. 2020).
159 Fed. R. Civ. P. 56(e)(2); see also Weitzner v. Sanofi Pasteur
Inc., 909 F.3d 604, 613–14 (3d Cir. 2018).
160 Fed. R. Civ. P. 56(c)(3).
55a
A. The Scope of the Third Circuit’s Mandate
The Employees argue that in remanding this case,
the Third Circuit went beyond merely reversing my
finding that the case required “expert opinion on
workplace safety risks or the protective value of their
PPE in order to meet the integral and indispensable
standard.” 161 In their view, the court’s decision
resolved several factual issues, which they argue I am
bound by here—even if untrue.162 Rather than dive
right into the teeth of this claim, it’s worth first
summarizing the four factual issues the Employees
claim the Third Circuit resolved.
Three of these claims are stated simply. To start, the
Employees contend that I am bound by a statement in
the background section: “basic PPE is worn to avoid
common hazards at the worksite, such as electrical
shock, falling objects, flying debris, slippery surfaces,
and chemical exposure.”163 Second, they assert that I
must also accept the Third Circuit “h[o]ld[ing] . . . as
a matter of law” that “[i]t is undisputed that, in the
course of rig hands’ work drilling oil and gas wells,
their basic PPE becomes covered with drilling mud,
grease, lubricants, and caustic chemicals, and that the
basic PPE reduces the risk of exposure to those
161 Tyger IV, 832 Fed. Appx. at 114; see Doc. 394 at 2–4; Doc
403 at 1–3; Doc 407 at 1, 3–8.
162 Doc. 407 at 6 (“[E]ven where a lower court fundamentally
disagrees with the express language and findings made in an
appellate mandate, it must dutifully comply even where
compliance leads to results which the trial court finds absurd
(which is clearly not the case at bar).”); see also Doc 403 at 2–3
(arguing the same).
163 Doc. 403 at 3 (quoting Tyger IV, 832 Fed. Appx. at 110).
56a
substances.”164 And third, they contend that I am also
bound by the Third Circuit’s statement, “‘[i]t is not
disputed that Precision failed to pay for’ donning and
doffing PPE.”165
Their remaining claim is more intensive. The
Employees’ seize on the Third Circuit’s statement that
under “both Precision’s Policies and the relevant
[OSHA] regulations, Plaintiffs are required to wear
various forms of basic PPE while operating oil rigs,”
as well as the footnote that accompanies it.166 That
footnote, which cites 29 C.F.R. § 1010.132, includes
the following explanatory parenthetical of the
regulation: “mandating PPE ‘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.’” 167 From this set of statements, the
Employees contend, “the Third Circuit explained
[that] the regulation applicable to Defendants’
worksite, 29 C.F.R. § 1910.132, requires employers to
specifically analyze the given hazards on the jobsites
and mandates PPE only when necessary to protect
employees from those specific hazards.” 168 And
164 See Doc. 394 at 3 (“The Mandate held that, as a matter of
law, the PPE ‘reduces the risk of exposure to these substances’”);
Doc. 403 at 3 (quoting Tyger IV, 832 Fed. Appx. at 110).
165 Doc. 403 at 3 (quoting Tyger IV, 832 Fed. Appx. at 110).
166 Id. at 2 (quoting Tyger IV, 832 Fed. Appx. at 110).
167 Tyger IV, 832 Fed. Appx. at 110, 110 n.3; see Doc. 403 at 2.
See generally Doc. 394 at 3–4, 14, 16, 18; Doc. 407 at 12–13.
168 Doc. 394 at 16.
57a
further, based on this finding (and the Employees’
interpretation of the regulation’s various subsections),
“it is also indisputable that Precision [Drilling]
assessed its workplace for actual and potential hazards and determined that the PPE was necessary in
its workplaces because, inter alia, ‘chemical hazards,
radiological hazards, or mechanical hazards.’”169
Setting aside, for the moment, whether these
statements reflect this case’s record, I do not agree
that I am bound by them. Under the mandate rule,
when a case is remanded “for further proceedings
after [a] decision by the appellate court, the trial court
must proceed in accordance with the mandate and the
law of the case as established on appeal.” 170 In
determining the mandate’s scope, “[a] trial court must
implement both the letter and spirit of the mandate,
taking into account the appellate court’s opinion and
the circumstances it embraces.”171 At the same time,
“the long-settled corollary” to this dictate is “that upon
remand, [the trial court] may consider, as a matter of
first impression, those issues not expressly or
implicitly disposed of by the appellate decision.”172 As
a result, I am “free to make any order or direction in
further progress of the case, not inconsistent with the
169 Id. at 18 (quoting 29 C.F.R. § 1910.132(a)).
170 Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943,
949 (3d Cir. 1985) (citing Briggs v. Pennsylvania R.R. Co., 334
U.S. 304, 306 (1948)).
171 Id.
172 Id. (citing Quern v. Jordan, 440 U.S. 332, 347 n.18 (1979)
and Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 168 (1939)).
58a
decision of the appellate court, as to any question not
settled by the decision.”173
Put simply, the Third Circuit did not settle these
factual matters. The statements, which are in the
case’s background section, were neither expressly nor
implicitly decided when the court reversed my finding
that expert testimony was required for the Employees
to make out their case. 174 My ultimately erroneous
decision was on a pure matter of law: no expert, no
case. And so was the Third Circuit’s reversal.
At worst, the Employees attempt to speak their
claim into existence by labeling facts as holdings or
dressing them up with the clause, “as a matter of law”;
needless to say, this lipstick-on-a-pig approach won’t
do. 175 At best, the Employees can point to two
sentences in the Third Circuit’s decision that support
their claim. First, in a footnote to the background
section, the Employees emphasize that the court
noted “[b]ecause we write primarily for the parties,
who are familiar with the facts and procedural
posture to date, we recite only the facts necessary to
our analysis.” 176 And second, the Employees stress
the following sentence from the analysis: “We
therefore conclude that a plaintiff may attempt to
satisfy the integral and indispensable requirement
with lay witness testimony and documentary evidence
concerning worksite safety risks and the nature of the
job and PPE at issue—evidence which Plaintiffs have
173 Id.
174 See Tyger IV, 832 Fed. Appx. at 113–15.
175 See Doc. 394 at 3–4.
176 Tyger IV, 832 Fed. Appx. at 110.
59a
produced in this case.” 177 But at bottom, the
Employees’ conclusion is tough to square with the
Third Circuit’s statement that because I “never
reached the issue of whether, based on the other
evidence presented by the Plaintiffs, donning and
doffing the basic PPE was integral and indispensable
to Plaintiffs’ work. . . . [it would] not address this
question.”178 Indeed, reaching the Employees’ stated
end would require the Third Circuit to have decided
which party made the more convincing case on certain
disputed facts when it had chosen not to address the
issue. I find that unlikely.
Yet while I disagree that I am bound by these
statements, that is not to say they are wholly
inaccurate. As I see it, most are wholly accurate. And
if they are not wholly accurate, they are largely
accurate, just lacking in nuance. The parties’
disagreement about the facts is really rather about
their degree and the conclusions that they require.179
For instance, it is clear that OSHA regulations
require that the Employees wear PPE, and I have no
doubt that the Third Circuit has accurately stated
what that regulation says.180 The real dispute here is
about the secondary and tertiary “facts” that the
177 Id. at 115.
178 Id.
179 This disagreement is further evidence that the Third
Circuit’s background section was intended to situate readers, not
drill down on factual disputes.
180 Tyger IV¸ 832 Fed. Appx. at 110, 110, n.3. Indeed, Precision
Drilling acknowledges as much. Doc. 395 at 12 (“The
requirement to wear PPE flows out of OSHA’s general industry
regulations”).
60a
Employees claim are now “undisputed” as a result.181
That is, the Employees’ claim that Precision Drilling’s
admission on this front “conclusively establishes, not
merely ‘that there may be some degree of risk to
employees;’ rather . . . that ‘at a minimum, [Plaintiffs]
are exposed to a significant risk of harm’ and that the
PPE reduces such risk.” 182 In other words, because
the gear is OSHA-required, the integral and
indispensable standard is satisfied and the Employees
are entitled to summary judgment. 183 But I’ll note
here that my views on this matter have not changed
since I rejected this argument in my first summary
judgment decision, and there is no sign that the Third
Circuit believes otherwise. To restate it simply, “the
presence of an OSHA regulation requiring the instant
PPE is relevant” to the transcendent risk inquiry, but
“it is not wholly determinative” as the Employees
suggest.184
At the same time, the issue about the statement “‘[i]t
is not disputed that Precision failed to pay for’
donning and doffing PPE” is that, depending on
meeting scheduling, the Employees were sometimes
able to don and doff on the clock.185 But it remains
181 See Doc. 401 ¶ 46.
182 Doc. 407 at 13 (alteration in the original).
183 See Doc. 394 at 15–20.
184 Tyger I, 308 F. Supp. 3d at 844; see Gorman v. Consol.
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.”).
185 Doc. 403 at 3 (quoting Tyger IV, 832 Fed. Appx. at 110); see
Doc. 401 ¶ 5 (detailing that the Employees may sometimes
change on the clock during safety meetings).
61a
clear that the Employees were not always paid. And
it’s a similar story with the Third Circuit’s statement,
“[i]t is undisputed that, in the course of rig hands’
work drilling oil and gas wells, their basic PPE
becomes covered with drilling mud, grease, lubricants,
and caustic chemicals, and that the basic PPE reduces
the risk of exposure to those substances.”186 Even if it
is not an everyday occurrence, there is no doubt that
some employees are exposed to these substances. Still,
that is not to say, as I’ll get into momentarily, that the
Employees are exposed to hazardous amounts or that
their basic PPE does much more than act as a barrier.
Finally, in that same vein is the Third Circuit’s
statement that the “basic PPE is worn to avoid
common hazards at the worksite, such as electrical
shock, falling objects, flying debris, slippery surfaces,
and chemical exposure.”187 The parties make differing
claims about how significant and how common the
risks are, as well as the amount of protection that the
basic PPE provides against them. So at day’s end, this
too is a matter of degree.
At first glance, the ink spilled over this issue would
suggest that this suit has taken on a Rashomon-like
quality. But on closer inspection, that is not the case.
As I see it, the facts are clear. The real dispute is about
the integral and indispensable legal standard and the
results that these facts require.
And with that, I’ll proceed to the merits.
B. The Transcendent Risk Inquiry under Perez
In remanding this case to consider whether
“donning and doffing the basic PPE was integral and
186 Doc. 403 at 3 (quoting Tyger IV, 832 Fed. Appx. at 110).
187 Id.
62a
indispensable to [the Employees’] work,” the Third
Circuit did not reject my adoption of the Second
Circuit’s transcendent risk inquiry as it was set out in
Perez.188 So I see no reason to depart from it now. To
show that donning and doffing their PPE is integral
and indispensable to drilling oil and gas wells, the
Employees must therefore prove that their basic PPE
“guards against ‘workplace dangers’ that accompany
[their] principal activities and ‘transcend ordinary
risks.’”189
The parties offer competing approaches to this
inquiry. Precision Drilling’s opening volley argues
that this inquiry ought to begin and end with the
generic nature of the Employees’ basic PPE.190 At the
same time, the Employees urge that I take a page out
of the statutory instruction playbook and look to the
dictionary definition of each of the key words.191 But
neither is satisfactory.
188 832 F.3d 120.
189 Tyger I, 308 F. Supp. at 848 (quoting Perez, 832 F.3d at
127).
190 Doc. 395 at 12.
191 Under their approach, a hazard would transcend ordinary
risks when the “working environment . . . exposes employees to
dangers which are beyond normal, such that ‘an employee could
not dispense with [donning his PPE] without impairing his
ability to perform his principal activity safely and effectively.’”
Doc. 403 at 5–6. Conveniently, this definition aligns with the
integral and indispensable standard that they argue I ought to
apply instead of Perez’s transcendent risk inquiry, that PPE is
“integral and indispensable” when it “is utilized to guard against
workplace risks which are not present in ordinary life.” Doc. 394
at 3. But as the Employees concede, dictionary definitions are
more typical in the realm of statutory construction. Doc. 403 at
5–6.
63a
To start, the first approach is flatly in conflict with
the case from which the inquiry came. Let me explain:
Precision Drilling claims that the workers’ safety gear
is generic, and that courts applying the recent
Supreme Court case, Integrity Staffing Solutions, v.
Busk, “have concluded that donning and doffing
standard safety gear is not integral and indispensable
to the principal work activity, including cases
concerning the oil and gas industry.” 192 And in
support of this proposition, Precision Drilling cites
Gorman, 193 and two other cases out of similar
litigation in Texas, Alanis v. Tracer Industry
Management Co. 194 and Stanley v. Car-Ber Testing
Texas, LLC.195
But Gorman did not cite Busk—a time machine
would have been required. And while the two Texas
cases did, that still does not allow the Court to
conclude that under the Perez transcendent risk
inquiry generic gear can never qualify. The Texas
cases relied on Von Friewalde v. Boeing Aerospace
Operations, 196 a United States Court of Appeals for
the Fifth Circuit case that cited Gorman for the
proposition, “donning and doffing of generic protection
gear such as safety glasses and hearing protection,
are . . . ‘noncompensable, preliminary tasks.’”197 But
192 Doc. 395 at 12.
193 488 F.3d 586.
194 2016 WL 7551073 (E.D. Tex. Aug. 1, 2016), report and
recommendation adopted, 2016 WL 4371535, at *2 (E.D. Tex.
Aug. 16, 2016).
195 2015 WL 3980272 (E.D. Tex. June 29, 2015).
196 339 Fed. Appx. 448, 454 (5th Cir. 2009).
197 See Alanis, 2016 WL 7551073, at *6–7.
64a
if Gorman adopted a generic test, the Second Circuit
walked it back in Perez.
The Employees’ approach does little better, however.
Besides subtly lowering the bar to a height which
their case can clear, it adds definitions to an area of
law that’s already a word salad. Consider the long
walk required to arrive at our present destination: the
Portal-to-Portal Act created an exception for activities
preliminary or postliminary to “principal activities,”
which Congress left undefined.198 The Supreme Court
then filled the void. It first defined “principal
activities” as activities that “are an integral and
indispensable part of the principal activities for which
covered workman are employed.” 199 And it later
clarified that “integral and indispensable” is
something that “is an intrinsic element of these
[principal] activities and one with which the employee
cannot dispense if he is to perform his principal
activities.” 200 From there, needing to focus this
inquiry given the wide contexts in which it is applied,
the Second Circuit—in an approach this Court elected
to follow—determined that donning and doffing PPE
is integral and indispensable to workers’ principal
activities when it “guards against ‘workplace dangers’
that accompany [their] principal activities and
‘transcend ordinary risks.’”201
If, as the Employees wish, this Court were to add yet
another set of definitions to arrive at “dangers which
198 See 29 U.S.C. § 254(a).
199 Steiner, 350 U.S. at 256.
200 Integrity Staffing Solution, Inc. v. Busk, 574 U.S. 27, 33
(2014).
201 Perez, 832 F.3d at 127 (quoting Gorman, 488 F.3d at 593).
65a
are beyond normal,” (and to further tack on language
from Justice Sotomayor’s concurrence: “such that ‘an
employee could not . . . perform his principal activity
safely and effectively’”) would this Court not then
need to define “dangers,” “normal,” “safely,” and
“effectively” as well? That way lies madness.
Given these shortcomings, to divine the inquiry’s
bounds, I will instead look to Perez and the line of
three cases that Second Circuit drew it from: 202
Steiner v. Mitchell, 203 Alvarez v. IBP, Inc., 204 and
Gorman v. Consolidated Energy Corp.205
The seminal case in the integral and indispensable
PPE jurisprudence is Steiner, a 1956 Supreme Court
case that dealt with the compensability of post-work
showers and the donning and doffing of companyprovided clothing. 206 There, the change-and-shower
program was necessitated by the circumstances. 207
Though the Court also noted that employees’ work at
a battery plant included “extensive use of dangerously
caustic and toxic materials,” its decision centered on
the workers’ endemic daily lead exposure.208 Despite
its best efforts, the plant could not keep employees’
lead exposure below 1.5 milligrams per 10 cubic
meters, the level scientists then regarded as
202 Id. at 124–25.
203 350 U.S. 247.
204 339 F.3d 894 (9th Cir. 2003).
205 488 F.3d 586.
206 Steiner, 350 U.S. at 249–51.
207 Id. at 248.
208 Id. at 249–50.
66a
hazardous because of the risk of lead poisoning. 209
But in detailing lead’s hazards and the benefits of
changing and showering, the Court hit on several
facts beyond the recorded lead levels.
For instance, the decision noted that medical exams
revealed that some workers had “[a]bnormal
concentrations of lead” in their bodies; and it further
highlighted evidence that by merely bringing particles
home workers exposed their families to danger. 210
Likewise the Court noted factors beyond this physical
evidence—describing how state law required the
company to provide shower facilities and pointing out
how insurers would not provide the employer required
coverage without these facilities.211 Finally, the Court
stressed testimony from a company employee stating,
“[i]n the afternoon the men are required by the
company to take a bath because lead oxide might be
absorbed into the blood stream. It protects the
company and the employee both.”212 In combination,
the Court found that these facts rendered the
changing of clothes and showering “an integral and
indispensable part of principal activities for which
[they were] employed . . . .”213
Next in the chronology is Alvarez. 214 There, the
United States Court of Appeals for the Ninth Circuit
209 Id. at 249.
210 Id. at 250.
211 Id. at 250–51.
212 Id. at 251 (internal quotation omitted).
213 Id. at 256.
214 339 F.3d 894. Ultimately, Alvarez was appealed to the
Supreme Court; however, neither the Ninth Circuit’s conclusion
that the unique and non-unique gear was integral and
67a
considered whether meat plant workers should have
been paid to don and doff their protective gear.215 At
the outset, the court noted the danger faced by meat
plant workers, writing, “[a]ccording to the United
States Department of Labor’s Bureau of Labor
Statistics, employment at a packing plant is still one
of the most dangerous jobs in America, with multiple
thousands of workers injured on the job every
year.” 216 Indeed, the trial court had found that
workers could be injured if their knife slipped on built
up fat and blood while butchering. 217 As a result,
indispensable, nor its finding that only the unique gear was
compensable because the time spent donning and doffing the
non-unique gear was de minimis were challenged. Alvarez, 546
U.S. at 32 (“IBP does not challenge the holding below that, in
light of Steiner, the donning and doffing of unique protective gear
are ‘principal activities’ under § 4 of the Portal-to-Portal Act.
Moreover, IBP has not asked us to overrule Steiner. . . . Thus, the
only question for us to decide is whether the Court of Appeals
correctly rejected IBP's contention that the walking between the
locker rooms and the production areas is excluded from FLSA
coverage by § 4(a)(1) of the Portal-to-Portal Act.”).
215 Alvarez, 339 F.3d at 902–03.
216 Id. at 898 (citing U.S. Dept. of Labor, Bureau of Labor
Statistics, Industry Injury and
http://www.bls.gov/iif/oshum.htm).
Illness
Data
(2002),
217 See Alvarez v. IBP, Inc., 2001 WL 34897841, at *13 (E.D.
Wa. Sept. 14, 2001) (“The workers testified that they could not
hold the knives safely without the clean gloves because of the
blood and fat that made them slip. Many workers changed their
gloves multiple times a day in order to keep them clean. Some
had as many as six to eight pairs that they changed throughout
the day. In addition to safety concerns, the employees testified
that the gloves were necessary as insulation from the cold of the
refrigerated carcasses and the cold temperature of the processing
floor. Cold hands made it more dangerous to use knives, saws,
and other types of cutting equipment.”). Given, however, that the
Ninth Circuit’s integral and indispensable test then focused on
68a
workers wore protective gear, which spanned the
spectrum from “non-unique” items, like hairnets and
hard hats, to “unique” gear, like Kevlar gloves and
metal-mesh leggings.218
Ultimately, the Ninth Circuit rejected the workers’
non-unique gear claims. The court wrote, “neither the
[Fair Labor Standards Act] policy nor ‘the actualities
of
plaintiffs’
working
conditions
justif[ied]
compensation for the time spent performing these
tasks.”219 So it determined that putting on hard hats
and hair nets was noncompensable under the de
minimis doctrine—a dagger that still dangles over
this case.220 But in the process, the Ninth Circuit also
determined that the donning and doffing of unique
and non-unique gear alike was “integral and
whether the company or OSHA rules required the gear—which,
as I’ll get into momentarily, the Supreme Court has since
rejected—the hazards in this case did not take center stage.
218 Alvarez, 339 F.3d at 904.
219 Id. at 903.
220 Id. The de minimis doctrine stems from Anderson, 328 U.S.
at 692 (“When the matter in issue concerns only a few seconds or
minutes of work beyond the scheduled working hours, such
trifles may be disregarded. Split-second absurdities are not
justified by the actualities of working conditions or by the policy
of the Fair Labor Standards Act. It is only when an employee is
required to give up a substantial measure of his time and effort
that compensable working time is involved.”). The basic PPE at
issue in this case would seem to be a candidate for dismissal
under this doctrine. But this issue has not been extensively
briefed. See Doc. 400 at 33–34; Doc. 407 at 14–17. And the
Employees have also highlighted deposition testimony claiming
that it took up to 45 minutes to don and doff the gear. See Doc.
242-17 at 102 (Deposition Testimony of Rodney Tyger).
69a
indispensable.” 221 It reached this finding after
determining first that OSHA and company rules
required this gear to be worn and then finding “that
donning, doffing, washing, and retrieving protective
gear [was], at both broad and basic levels, done for the
benefit of [the employer].”222
But there is good reason to divorce this required-by
and for-the-benefit-of-the-employer analysis from any
assessment under the Perez inquiry. Over a decade
later, in Busk, 223 the Supreme Court explicitly
rejected both prongs of this Ninth Circuit test when it
considered the compensability of post-shift security
screenings. 224 The Court wrote, “[t]he Court of
Appeals erred by focusing on whether an employer
required a particular activity,” and it later added, “[a]
test that turns on whether the activity is for the
benefit of the employer is similarly overbroad.”225
The lessons that can be drawn from Perez’s nodding
approval of Alvarez are accordingly limited. As I see it,
Perez can be read only to endorse the end-result. That
is, in the Second Circuit’s view, the donning of nonunique garb, like the Kevlar gloves and metal-mesh
leggings that survived the Ninth Circuit’s de minimis
assessment, guarded against workplace dangers that
accompanied the butcher’s principal activity and
transcended ordinary risks. And indeed, this sort of
gear is the only type mentioned in the Second Circuit’s
221 Alvarez, 339 F.3d at 904.
222 Id. (emphasis added).
223 574 U.S. 27.
224 See id. at 36.
225 Id. (emphasis in the original).
70a
decision. In support of its initial proposition—that
“[c]ourts have . . . concluded that an employee’s preand post-shift efforts to protect against heightened
workplace dangers can qualify as integral and
indispensable”—the court wrote just that “in Alvarez,
the Ninth Circuit concluded that slaughterhouse employees’ donning and doffing of protective equipment,
including ‘metal-mesh gear,’ qualified as integral and
indispensable to their butchering work.”226
Next in the sequence is Gorman, a 2007 case in
which the Second Circuit considered compensability
claims brought by Indian Point Nuclear Power Plant
workers. 227 Part of the workers’ case centered on
unpaid time spent donning and doffing helmets,
safety glasses, and steel-toed boots. 228 After
highlighting the dangerous work conditions faced by
the workers in Steiner, the lower court had concluded,
without exploring any dangers intrinsic to work at
Indian Point, that the gear was “not specialized”
because “[a]nyone could purchase them at an ordinary
hardware store.”229 In the court’s view, this made the
PPE unlike the clothes worn in Steiner or the meatprocessing plant equipment in Alvarez.230 And in any
event, the trial court further added that the time
226 Perez, 832 F.3d at 124–25.
227 Gorman, 488 F.3d at 589.
228 Id. at 594.
229 Id.
230 Gorman v. Energy Nuclear Operations, Inc., 2006 WL
477619, at *5, *5 n.9 (S.D.N.Y. Apr. 14, 2006).
71a
spent donning and doffing the gear was de minimis,
rendering it otherwise noncompensable.231
The Second Circuit affirmed the motion to dismiss
on appeal. In the appellate court’s view, “[t]he donning
and doffing of such generic protective gear [was] not
different in kind from ‘changing clothes and
showering under normal conditions,’ which, under
Steiner, [were] not covered by the [Fair Labor
Standards Act].”232 At the same time, the court also
emphasized, “[t]he donning and doffing of generic
protective gear [was] not rendered integral by being
required by the employer or by regulation.”233
But it would be a mistake to read Gorman without
Perez’s gloss.234 In Perez, the Second Circuit reversed
a trial court that found the donning and doffing of
bulletproof
vests
by
urban
park
rangers
noncompensable based solely on its generic nature.
This error, according to the court, stemmed from the
trial court’s misapplication of Gorman, which it took
to mean “the donning and doffing of generic protective
gear is not covered by the [Fair Labor Standards
231 Id.
232 Gorman, 488 F.3d at 594.
233 Id. (citing Reich v. IBP, Inc., 38 F.3d 1123, 1126 (10th Cir.
1994)).
234 See Tyger I, 308 F. Supp. 3d at 846–47 (“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 have cautioned against its broad
application.”).
72a
Act].” 235 But the Second Circuit emphasized that
Gorman did not establish a categorical genericity
rule. 236 Rather, in its view Gorman had “held that
nuclear power plant employees’ donning and doffing
of helmets, safety glasses, and steel-toed boots did not
qualify as integral and indispensable because the
items at issue guarded against only routine
workplace risks.” What’s more, the Second Circuit
emphasized, while “[t]he generic nature of the items
may have pointed toward that ultimate conclusion,
because generic equipment is more likely than
specialized equipment to address workplace
conditions that are commonplace . . . . [,] the items’
generic nature did not establish, as a matter of law,
that they guarded against only routine risks.”237 The
Second Circuit drew on Steiner for this point, which it
emphasized held, “items as generic as a shower and a
change of clothes can, in certain circumstances,
neutralize extreme threats to worker safety.”238 As a
result, “[t]o decide whether the use of protective gear
qualifies as integral and indispensable, therefore,
courts always must determine whether the gear—
however generic or specialized—guards against
‘workplace dangers’ that accompany the employee’s
principal activities and ‘transcend ordinary risks.’”239
And “[t]his inquiry,” the court further noted, “requires
235 Perez v. City of New York, 2015 WL 424394, at *2 (S.D.N.Y.
Jan. 15, 2015) (quoting Gorman, 488 F.3d at 594) (internal
alterations omitted).
236 Perez, 832 F.3d at 127.
237 Id.
238 Id.
239 Id.
73a
a fact-intensive examination of the gear at issue, the
employee’s principal activities, and the relationship
between them.”240
With this clarified standard in mind, the Second
Circuit determined that “[t]he risk of sustaining
gunfire while enforcing municipal laws [was] not, in
[their] view, an ordinary risk of employment,”241 and
remanded the case to the district court to determine
whether the donning and doffing of “the bulletproof
vest
also
may
qualify
as
integral
and
242
indispensable.”
So where does that leave us? Ultimately, the Perez
inquiry “is markedly ‘fact-dependent,’” but as I see it,
these four cases bear on the three components baked
into phrase “guards against ‘workplace dangers’ that
accompany the employee’s principal activities and
‘transcend ordinary risks.’”243
First, the Employees must identify a workplace
danger that transcends ordinary risks. The cases
make plain that courts should not concern themselves
with trifles. Perez and Steiner centered on deadly
harms. But by acknowledging Alvarez, where the
workers’ PPE guarded against the risk of slicing
themselves while butchering meat, Perez appears to
have left the door open to serious, though not
necessarily lethal, harms.244
240 Id.
241 Id. at 125.
242 Id.
243 Tyger I, 308 F. Supp. at 848 (quoting Perez, 832 F.3d at
127).
244 See Perez, 832 F.3d at 125.
74a
Second, the Employees must show that this
transcendent risk accompanies their principal
activities. If the inquiry’s first step centers on the
magnitude of the risk, the second centers on its
frequency. In Steiner, the risk was pervasive; each day
the workers entered the plant they were exposed to
dangerous levels of lead. 245 But this appears to
represent just one end of the spectrum, as Perez
recognized that the less common risk of line-of-duty
shootings may suffice.246
Third, the Employees must show that their basic
PPE “guards against” this transcendent risk. Here,
the Employees have a tough row to hoe. One case,
Gorman, more-or-less states outright that basic PPE
is not up to the task when the risk is sufficiently
great. 247 And while I have noted that the blind
application of Gorman is unwarranted, two of the
other cases, Alvarez and Perez, hint at that same
conclusion.248 Regardless, Perez rejects a categorical
approach, and instructs that “a fact-intensive
examination of the gear at issue” be undertaken. As I
view it, the gear must provide meaningful protection.
Though Perez spoke of gear “neutraliz[ing] extreme
threats to worker safety,” it did not seem to think
absolute protection was required; a bulletproof vest
245 See Steiner, 350 U.S. at 249–51.
246 See Perez, 832 F.3d at 125, 127 (noting that “[t]he risk of
sustaining gunfire while enforcing municipal laws [was] not, in
[its] view, an ordinary risk of employment,” and later
determining that “[b]ecause the success of . . . [this] argument[]
is fact-dependent, [the circuit court would] leave it to the district
court, on remand, to address [it] in the first instance.”).
247 Gorman, 488 F.3d at 594.
248 See Perez, 832 F.3d at 127; Alvarez, 339 F.3d at 904.
75a
may well prevent an officer from being shot in the
midsection, but that’s about it. 249 As a result, even
when there is no other evidence of a particular item’s
effectiveness, it may suffice that it was intended to
protect against a particular harm.
So how then does this inquiry apply to the risks and
PPE that the Employees identify here?
1. Mechanical Risks
For the most part, the mechanical risks that the
Employees describe are quintessentially ordinary.
Having your hand pinched, burned, or blistered is
undoubtedly uncomfortable; and the same could be
said about having your eyes exposed to debris and
dust or even having your toes crushed. 250 Although
risks need not be fatal, the Employees have not shown
that these are persistent or severe enough to be said
to transcend ordinary risks. To hold otherwise would
require lowering the bar further than any other court
has to date. And this Court will not be breaking that
new ground.
Some of these same faults are present in the
Employees’ claims that other aspects of their day-today operations have had harmful, and at times deadly,
or near deadly, consequences. Let’s start with the
Employees claims that they may suffer hearing loss
from workplace noise and that “cementing . . . ‘can
cause severe damage.’”251 As best I can gather from
their various filings, to support the first of these
249 Perez, 832 F.3d at 127.
250 Doc. 393 ¶¶ 11, 15–16.
251 See Doc. 393 ¶¶ 14, 16; see also Doc. 403 at 7 (pointing to
the Precision Drilling Safety Manual in support of their hearing
loss claim).
76a
assertions, the Employees cite the Company Safety
Manual, which they claim says, “[n]oise induced
hearing
loss
is
irreversible
...
[and]
PREVENTABLE,”252 and deposition testimony where
a rig worker stated, “I’m deaf because I didn’t wear
[ear protection] because it wasn’t a rule.”253
But a reasonable juror could not conclude that the
Employees faced a transcendent risk. Quite simply,
the Employees have not shown that the risk of hearing
loss is hazardous enough. Indeed, what evidence they
do have comes from one individual who made an offhand remark about being deaf—though given that he
sat for a deposition, this appears not to have been total.
At the same, nothing suggests that this experience
was commonplace. 254 Now, had the Employees
uncovered evidence that workers across-the-board
experienced deafness, that may well have catapulted
this non-deadly risk to Steiner-, Alvarez-, and Perezlike levels. As is, however, the evidence falls well short.
The second of these assertions, about the risk of
cementing, suffers similar evidentiary flaws. The sole
basis for the Employees’ claim is the Company Safety
Manual. It instructs rig workers, “cementing is
252 See Doc. 403 at 7. And I say they claim because the citation
they provide does not actually direct the Court to a page. The
Employees cite Doc. 282, but the Bates number they provide,
“8475,” isn’t included in that document or Doc. 283, which
contains the second half of the safety manual.
253 Doc. 242-14 at 29:21–22; see Doc. 404 ¶ 43. The Employees
also cite to deposition testimony emphasizing that earplugs
protect against the risk of hearing loss. See Doc. 393 ¶ 16; Doc.
242 at 22:8–9 (Deposition Testimony of Michael Adkins)
(“Earplugs protect workers from hearing loss.”).
254 See Doc. 242-14 at 29:21–22.
77a
corrosive and can cause severe damage,” and thus “all
personnel must be properly dressed whenever the
danger of contact exists”—with proper dress meaning
“safety glasses, gloves that completely cover the wrist
area, boots that are fully laced, [and] pant cuffs
extending over the boots.”255 What’s more, the Safety
Manual provides that if the rig workers’ clothing
becomes saturated, they are to remove it and wash
their skin.”256 But none of the Employees’ briefs, nor
their answer to Precision Drilling’s statement of facts,
shed any more light on this risk, or what “cementing”
even entails. 257 “Severe damage,” if supported and
explicated, may well be a transcendent risk. But based
on the evidence that the Employees have put forward
here, there’s no way of knowing. As it stands, a jury
would not even have enough evidence to begin
weighing the magnitude or frequency of risk posed by
the cementing process—to say nothing of concluding
that it was a transcendent risk.
Finally, there are the three workplace accidents that
the Employees raised in their reply brief.258 Precision
Drilling contends that these reply brief attachments
cannot be considered at summary judgment; that may
well be, but even if they were, it wouldn’t move the
needle.259 To start, the three workplace accidents are
255 Doc. 393 ¶ 14 (quoting Doc. 283-1 at 1).
256 Id.
257 See Doc. 394; Doc. 403; Doc. 407; Doc. 404.
258 Doc. 393 ¶ 13; see Doc. 403 at 11.
259 That I am setting aside this objection in no way means that
I reject Precision Drilling’s claim, which is based on the
Employees’ counsel, the affiant, not being a proper source to
introduce these documents through at trial. Doc. 406 at 8–9. At
a glance, this objection appears well-founded. See Travelers Ins.
78a
unrelated and infrequent.260 In one, a pin fell 80 feet,
embedding itself in a rig worker’s helmet—backing
the Safety Manual’s assertion that “tools dropped
from a height have caused significant injuries.”261 In
another, a rig worker was killed when he was backed
over by a frontloader.262 And in the final example, a
rig worker was killed while “tripping out.” 263 But
while the magnitude of harm in each instance is great,
causing death or near-death, these accidents appear
to happen once a decade—if that. And that frequency
is a far cry from the daily exposure in Steiner or the
Co., 928 F. Supp. at 482 (citing Fed. R. Civ. P. 56(e) and Williams
v. Borough of West Chester, Pa., 891 F.2d 458, 471 (3d Cir. 1989))
(quoting Fed. R. Evid. (901(a) and 10A Charles A. Wright et. al,
Federal Practice and Procedure § 2722 at 58–60 (2d ed. 1983))
(“It is well settled that only evidence which is admissible at trial
may be considered in ruling on a motion for summary judgment.
A decision on admissibility under Rule 56 is governed by the
same standards at trial. Federal Rule of Evidence 901(a) requires
‘authentication or identification as a condition precedent to
admissibility.’. . . In order for a document to be considered by a
court in ruling on a motion for summary judgment, . . . ‘the
affiant must be a person through who the exhibits could be
admitted into evidence.’”) (internal citations omitted).
260 Precision Drilling has emphasized, “[t]he basic PPE
protects against hazards and risks that exist in industrial
workplaces and construction sites generally, not hazards and
risks that are an intrinsic element of drilling oil and gas wells.”
Doc. 401 ¶¶ 11, 16. As I see it, it’s not about whether the risk is
a direct result of oil- or gas-drilling operations, but rather about
how harmful and commonplace that event is. Thus, the risk that
a tool falls and strikes an employee could not be discounted as
extrinsic to drilling operations merely because it happens
elsewhere.
261 Doc. 403 at 9–10; Doc. 282-1 at 170.
262 Doc. 403 at 11.
263 Id.
79a
not uncommon line-of-duty shooting that the Second
Circuit dealt with in Perez. 264 If these isolated
incidents did qualify, it would make the requirement
that the hazard “accompany the employee’s principal
activities” meaningless.
Furthermore, for two of these instances, there’s no
evidence suggesting that the basic PPE did anything
to guard against the risk. I disagree with Precision
Drilling’s claim that it would be improper to assume
that the rig worker whose helmet was impaled by a
pin would have suffered greater injury had he not
been wearing the hard hat.265 If that doesn’t suffice, I
don’t know what would. But that’s not necessarily the
case for the other two. Indeed, the Employees never
even make the case that their basic PPE provided any
protection against these risks. That’s telling. As I see
it, a reasonable jury could not conclude based on the
evidence before the Court that any gear, whether
basic or specialized, would have protected the nowdeceased rig workers.
2. Fire and Burn Risks
The fire and burn risks pose a closer call, but some
of the same problems persist. The Employees compile
264 As the issue was remanded for consideration in the first
instance in Perez, neither the district or circuit court delved into
how often these law enforcement officers were shot; however,
according to FBI data, 22,088 officers were injured in assaults
with firearms between 2010 and 2019. FBI, Uniform Crime
Reporting: Law Enforcement Officers Killed and Assault, Table
85 (2019), https://ucr.fbi.gov/leoka/2019/topic-pages/tables/table85.xls. There are undoubtedly more law enforcement officers in
the country than oil rig workers, and urban park rangers may
well face a lesser risk, but in the Court’s view, these appear to be
quite different likelihoods of harm.
265 See Doc. 406 at 9–10.
80a
a strong case that their fire retardant coveralls guard
against the risk of fires and burns. Between an OSHA
enforcement policy statement that emphasizes this
gear’s protection, deposition testimony highlighting
that it reduces burn risk, and—perhaps most
importantly—the fact that fire retardant coveralls
were meant to do just that, a reasonable jury could
easily find that this gear guards against fire and burn
risks. 266 The Employees fail, however, to offer
evidence on the severity and frequency of these
supposed risks.
The crux of their claim, which is based on the
Company’s Safety Sheets and Safety Manual, is that
their worksite poses a risk of flash fires and blowouts.
At first blush, these risks appear serious, even deadly.
But the Employees fail to show that these risks are
more than hypothetical—a problem that may well be
inherent in cases built on safety manuals. At best,
they can point to Glenn Hoganson’s statement that he
knew of a rig catching fire. 267 But this isolated
incident, which does not appear to have even taken
place on a Precision Drilling rig, is not enough to drag
their claim over the finish line.268 Put simply, without
266 See Doc. 393 ¶ 18 (detailing the OSHA policy); id. ¶ 20–22
(describing deposition testimony).
267 See Doc. 242-20 at 41–42.
268 See id. at 41:12–42:3 (Deposition Testimony of Glenn
Hoganson) (“Q. Have you ever seen a fire on a rig? A. Yes, I have.
Q. And have you ever seen a fire get close to a guy who is wearing
a coverall? A. No. We evacuated the rig and the company men,
but I have personal knowledge of the crew that—the drilling that
took my job when I left cyclone [and] went to work for Precision.
Rig 18 caught on fire. The driller, the motor hand[,] and the floor
hand were burned 90 percent of their bodies. It almost killed both
of them. They spent over two years in the hospital. The rig
81a
evidence showing the likelihood of this harm, these
risks are far too different from Steiner and Perez for a
reasonable juror to find that they accompany the
Employees’ principal activities and transcend
ordinary risks.
The same goes for the Employees’ ancillary claim
centering, once again, on the cementing process. They
contend that rig hands may experience burns during
this process; yet nothing they cite clarifies the
likelihood or magnitude of this harm. Indeed, in the
words of the Safety Manager, whose deposition the
Employees rely on, the evidence they’ve put forward
merely shows that cementing without fire retardant
coveralls would be “unsafer.”269 That is not enough to
survive summary judgment.
3. Chemical Risks
Finally, the chemicals risks that the Employees
have identified fare similarly. As I see it, the evidence
more than adequately shows that they were exposed
drilling fluid on a frequent enough basis, contrary to
Precision Drilling’s claim that the lack of uniformity
in drilling mud type and exposure rendered it too
unlike Steiner. 270 Indeed, everyday exposure is not
burned to the ground. The derrick went over in two and a half
minutes. Okay. These are—those two cats I’ve known my whole
adult life since I was in my twenties.”).
269 See Doc. 284-3 at 60:3–61:7 (Deposition Testimony of
Lawson Threeton); Doc. 393 ¶ 20.
270 See Doc. 395 at 20 (“Exposure to oil-based mud is not a
uniform condition of employment. It is undisputed that not all
rigs drill using oil-based mud. Those that do use it do not use it
exclusively, and the percentage of the time they do use it varies.
. . . As a result, it cannot be said that exposure to oil-based mud
82a
required: Perez permitted a claim to move forward
even though line-of-duty shootings do not happen
daily.271 The problem, however, is that the Employees’
evidence fails to show that the drilling mud
endangered them. In Steiner, the record was clear.
The workers were regularly exposed to lead
concentrations exceeding 1.5 milligrams per 10 cubic
meters; medical professionals had determined that
this level of exposure caused lead poisoning; and in
medical exams, workers had in fact registered
excessive lead levels.272 At the same time, in Perez,
the risk that police officer may be shot was considered
more-or-less self-evident—though the Second Circuit
ultimately remanded the case to the trial court for
consideration of these dangers in the first instance.273
But here, the Employees’ evidence consists of a
Company Safety Manual and Material Safety Data
Sheets suggesting that these chemicals “may” or “can”
cause various health effects and deposition testimony
showing that drilling mud caused some workers
rashes and infections.274
In its reversal, the Third Circuit made plain that
expert testimony is not required to make out these
claims because the “integral and indispensable
inquiry does not require that Plaintiffs establish a
causal link between occupational hazards and
is a consistent hazard similar to the uniformly present hazard of
lead poising in Steiner.”).
271 See Perez, 832 F.3d at 125, 127.
272 Steiner, 350 U.S. at 249–50.
273 See Perez, 832 F.3d at 125.
274 See Doc. 401 ¶¶ 43–45.
83a
medical.” 275 But that does not alleviate the
Employees of their burden entirely. Their lay and
documentary testimony must still show that the
hazard transcended ordinary risks. And at bottom, it
is not enough for the Employees to flail at cancer risks
that are only evident in lab mice, or which only come
through ingesting or breathing in the chemicals.276 So
based on this evidence, I do not believe that a
reasonable jury member could conclude that exposure
to drilling mud in their day-to-day operations posed a
transcendent risk. The Employees have not shown
that any of the prerequisites to the “may” or “can”
have been met—at most, they have highlighted few
instances of irritated hands.
Still that is not the only problem with their evidence.
Even if the Employees could show that they were
exposed to dangerous amount of drilling fluid, I
remain unconvinced that the basic PPE, and in
particular their fire retardant coveralls, adequately
guard against this risk. It is undeniable that by being
a barrier, the basic PPE “reduces” exposure. 277 But
this incidental effect does not settle the matter. By the
same token, if Precision Drilling had a mask mandate,
a surgical mask would also reduce exposure. Now in
fairness, this is a closer call; the fire retardant
coveralls hold up much better than a cloth mask. But
as one might expect from coveralls designed to resist
fire, when Employees are inundated with drilling
fluid, the coveralls have soaked through. 278 Indeed,
275 Tyger IV, 832 Fed. Appx. at 114.
276 See Doc. 401 ¶¶ 43–45.
277 Tyger IV. 832 Fed. Appx. at 110.
278 Doc. 335-4 at 61:5–62:3 (Deposition Testimony of Jeff
McWilliams) (“Q. So the coveralls doesn’t protect you as a
84a
because of this incomplete protection, Precision
Drilling requires that its employees don additional
PPE when mixing drilling chemicals, a time when
their exposure could be dangerous.279
IV. CONCLUSION
This Court has spent significant time sifting
through the record, which is the product of some 20odd depositions and multiple years of discovery.
Today’s conclusion is inescapable: 11 years on—with
various other parts of the case having been settled or
dismissed—there’s even less that remains than meets
the eye. To find that the Employees’ basic PPE guards
against workplace hazards that accompany their
principal activities and transcends ordinary risks
would be out of step with courts across the country.
The hazards that the Employees have described are
either ordinary, hypothetical, or isolated. And the
protection that the Employees’ steel-toed boots, hard
hats, safety glasses, fire retardant coveralls, gloves,
and earplugs provide against them can at best be
floorhand from drilling mud, does it? A. Yes, it keeps—it keeps it
off your skin on most occasions. Q. Okay. But it can soak through
the coverall and get on your skin? A. Yeah, if you—like I said if
you get doused yeah. Q. So you’ve had it on your skin? A. Yes.”);
Doc. 242-9 at 49:3–11 (Deposition Testimony of Shayne Klepper)
(“So the way it works is you work your twelve hours. You might
go through two pairs of coveralls. We also provide them throwaway Tyvek suits if you’re doing a task that’s going to really get
you covered in mud . . . .”). This exposure is further evidenced by
the rig hands who reported rashes. See Doc. 242-28 at 41:21–25
(Deposition Testimony of Brandon Weeden); Doc. 242-19 at
44:17–24 (Deposition Testimony of Robert Goodwyn); Doc. 24218 at 149:3–11 (Deposition Testimony of Shaun Wadsworth);
Doc. 242-27 at 74:12–18 (Deposition Testimony of George
Hollabaugh).
279 See Doc. 401 ¶¶ 34–39, 41–45.
85a
described as so-so. This dooms their donning and
doffing and walking and waiting time claims alike.280
Precision Drilling’s motion for summary judgment is
therefore granted. An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
Chief United States District
Judge
280 See Tyger IV, 832 Fed. Appx. at 113, n.9 (“the parties agree
that, pursuant to the Department of Labor’s ‘continuous workday
rule,’ the post-donning and pre-doffing walking and waiting time
is compensable only if donning and doffing is also compensable”).
86a
APPENDIX C
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
_______________
(M.D. Pa. No. 4:11-cv-01913)
_______________
SUR PETITION FOR REHEARING
_______________
Present: CHAGARES, Chief Judge, and JORDAN,
HARDIMAN, SHWARTZ, KRAUSE,
RESTREPO, BIBAS, PORTER, MATEY,
PHIPPS, FREEMAN, MONTGOMERYREEVES, CHUNG, and AMBRO,* Circuit
Judges
The petition for rehearing filed by Appellees in the
above-captioned case having been submitted to the
* Judge Ambro’s vote is limited to panel rehearing only.
87a
judges who participated in the decision of this Court
and to all the other available circuit judges of the
circuit in regular active service, and no judge who
concurred in the decision having asked for rehearing,
and a majority of the judges of the circuit in regular
service not having voted for rehearing, the petition for
rehearing by the panel and the Court en banc is
DENIED.
By the Court,
s/ Stephanos Bibas
Circuit Judge
Dated: December 1, 2023
kr/cc: All Counsel of Record
88a
APPENDIX D
29 U.S.C. § 251, Congressional findings and
declaration of policy:
(a) The Congress finds that the Fair Labor Standards
Act of 1938, as amended, has been interpreted
judicially in disregard of long-established customs,
practices, and contracts between employers and
employees, thereby creating wholly unexpected
liabilities, immense in amount and retroactive in
operation, upon employers with the results that, if
said Act as so interpreted or claims arising under such
interpretations were permitted to stand, (1) the
payment of such liabilities would bring about
financial ruin of many employers and seriously impair
the capital resources of many others, thereby
resulting in the reduction of industrial operations,
halting of expansion and development, curtailing
employment, and the earning power of employees; (2)
the credit of many employers would be seriously
impaired; (3) there would be created both an extended
and continuous uncertainty on the part of industry,
both employer and employee, as to the financial
condition of productive establishments and a gross
inequality of competitive conditions between
employers and between industries; (4) employees
would receive windfall payments, including liquidated
damages, of sums for activities performed by them
without any expectation of reward beyond that
included in their agreed rates of pay; (5) there would
occur the promotion of increasing demands for
payment to employees for engaging in activities no
compensation for which had been contemplated by
either the employer or employee at the time they were
89a
engaged in; (6) voluntary collective bargaining would
be interfered with and industrial disputes between
employees and employers and between employees and
employees would be created; (7) the courts of the
country would be burdened with excessive and
needless litigation and champertous practices would
be encouraged; (8) the Public Treasury would be
deprived of large sums of revenues and public finances
would be seriously deranged by claims against the
Public Treasury for refunds of taxes already paid; (9)
the cost to the Government of goods and services
heretofore and hereafter purchased by its various
departments and agencies would be unreasonably
increased and the Public Treasury would be seriously
affected by consequent increased cost of war contracts;
and (10) serious and adverse effects upon the
revenues of Federal, State, and local governments
would occur.
The Congress further finds that all of the foregoing
constitutes a substantial burden on commerce and a
substantial obstruction to the free flow of goods in
commerce.
The Congress, therefore, further finds and declares
that it is in the national public interest and for the
general welfare, essential to national defense, and
necessary to aid, protect, and foster commerce, that
this chapter be enacted.
The Congress further finds that the varying and
extended periods of time for which, under the laws of
the several States, potential retroactive liability may
be imposed upon employers, have given and will give
rise to great difficulties in the sound and orderly
conduct of business and industry.
90a
The Congress further finds and declares that all of the
results which have arisen or may arise under the Fair
Labor Standards Act of 1938, as amended, as
aforesaid, may (except as to liability for liquidated
damages) arise with respect to the Walsh-Healey and
Bacon-Davis Acts and that it is, therefore, in the
national public interest and for the general welfare,
essential to national defense, and necessary to aid,
protect, and foster commerce, that this chapter shall
apply to the Walsh-Healey Act and the Bacon-Davis
Act.
(b) It is declared to be the policy of the Congress in
order to meet the existing emergency and to correct
existing evils (1) to relieve and protect interstate
commerce from practices which burden and obstruct
it; (2) to protect the right of collective bargaining; and
(3) to define and limit the jurisdiction of the courts.
29 U.S.C. § 254, Relief from liability and
punishment under the Fair Labor Standards
Act of 1938, the Walsh-Healey Act, and the
Bacon-Davis Act for failure to pay minimum
wage or overtime compensation:
(a) Activities not compensable
Except as provided in subsection (b), no employer
shall be subject to any liability or punishment under
the Fair Labor Standards Act of 1938, as amended,
the Walsh-Healey Act, or the Bacon-Davis Act, on
account of the failure of such employer to pay an
employee minimum wages, or to pay an employee
overtime compensation, for or on account of any of the
following activities of such employee engaged in on or
after May 14, 1947—
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(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,
which occur either prior to the time on any particular
workday at which such employee commences, or
subsequent to the time on any particular workday at
which he ceases, such principal activity or activities.
For purposes of this subsection, the use of an
employer's vehicle for travel by an employee and
activities performed by an employee which are
incidental to the use of such vehicle for commuting
shall not be considered part of the employee's
principal activities if the use of such vehicle for travel
is within the normal commuting area for the
employer's business or establishment and the use of
the employer's vehicle is subject to an agreement on
the part of the employer and the employee or
representative of such employee.
(b) Compensability by contract or custom
Notwithstanding the provisions of subsection (a)
which relieve an employer from liability and
punishment with respect to any activity, the employer
shall not be so relieved if such activity is compensable
by either—
(1) an express provision of a written or nonwritten
contract in effect, at the time of such activity,
between such employee, his agent, or collectivebargaining representative and his employer; or
(2) a custom or practice in effect, at the time of such
activity, at the establishment or other place where
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such employee is employed, covering such activity,
not inconsistent with a written or nonwritten
contract, in effect at the time of such activity,
between such employee, his agent, or collectivebargaining representative and his employer.
(c) Restriction on activities compensable under
contract or custom
For the purposes of subsection (b), an activity shall be
considered as compensable under such contract
provision or such custom or practice only when it is
engaged in during the portion of the day with respect
to which it is so made compensable.
(d) Determination of time employed with respect to
activities
In the application of the minimum wage and overtime
compensation provisions of the Fair Labor Standards
Act of 1938, as amended, of the Walsh-Healey Act, or
of the Bacon-Davis Act, in determining the time for
which an employer employs an employee with respect
to walking, riding, traveling, or other preliminary or
postliminary activities described in subsection (a) of
this section, there shall be counted all that time, but
only that time, during which the employee engages in
any such activity which is compensable within the
meaning of subsections (b) and (c) of this section
29 C.F.R. § 790.6, Periods within the “workday”
unaffected:
(a) Section 4 of the Portal Act does not affect the
computation of hours worked within the “workday”
proper, roughly described as the period “from whistle
to whistle,” and its provisions have nothing to do with
the compensability under the Fair Labor Standards
93a
Act of any activities engaged in by an employee during
that period.34 Under the provisions of section 4, one of
the conditions that must be present before
“preliminary” or “postliminary” activities are
excluded from hours worked is that they ‘occur either
prior to the time on any particular workday at which
the employee commences, or subsequent to the time
on any particular workday at which he ceases’ the
principal activity or activities which he is employed to
perform. Accordingly, to the extent that activities
engaged in by an employee occur after the employee
commences to perform the first principal activity on a
particular workday and before he ceases the
performance of the last principal activity on a
particular workday, the provisions of that section
have no application. Periods of time between the
commencement of the employee’s first principal
activity and the completion of his last principal
activity on any workday must be included in the
computation of hours worked to the same extent as
would be required if the Portal Act had not been
enacted.35 The principles for determining hours
34 The report of the Senate Judiciary Committee states (p. 47),
“Activities of an employee which take place during the workday
are * * * not affected by this section (section 4 of the Portal-toPortal Act, as finally enacted) and such activities will continue to
be compensable or not without regard to the provisions of this
section.”
35 See Senate Report, pp. 47, 48; Conference Report, p. 12;
statement of Senator Wiley, explaining the conference
agreement to the Senate, 93 Cong. Rec. 4269 (also 2084, 2085);
statement of Representative Gwynne, explaining the conference
agreement to the House of Representatives, 93 Cong. Rec. 4388;
statements of Senator Cooper, 93 Cong. Rec. 2293–2294, 2296–
2300; statements of Senator Donnell, 93 Cong. Rec. 2181, 2182,
2362.
94a
worked within the “workday” proper will continue to
be those established under the Fair Labor Standards
Act without reference to the Portal Act,36 which is
concerned with this question only as it relates to time
spent outside the “workday” in activities of the kind
described in section 4.37
(b) “Workday” as used in the Portal Act means, in
general, the period between the commencement and
completion on the same workday of an employee's
principal activity or activities. It includes all time
within that period whether or not the employee
engages in work throughout all of that period. For
example, a rest period or a lunch period is part of the
“workday”, and section 4 of the Portal Act therefore
plays no part in determining whether such a period,
under the particular circumstances presented, is or is
not compensable, or whether it should be included in
the computation of hours worked.38 If an employee is
required to report at the actual place of performance
of his principal activity at a certain specific time, his
“workday” commences at the time he reports there for
work in accordance with the employer's requirement,
even though through a cause beyond the employee's
control, he is not able to commence performance of his
productive activities until a later time. In such a
36 The determinations of hours worked under the Fair Labor
Standards Act, as amended is discussed in Part 785 of this
chapter.
37 See statement of Senator Wiley explaining the conference
agreement to the Senate, 93 Cong. Rec. 3269. See also the
discussion in §§ 790.7 and 790.8.
38 Senate Report, pp. 47, 48. Cf. statement of Senator Wiley
explaining the conference agreement to the Senate, 93 Cong. Rec.
4269; statement of Senator Donnell, 93 Cong. Rec. 2362;
statements of Senator Cooper, 93 Cong. Rec. 2297, 2298.
95a
situation the time spent waiting for work would be
part of the workday,39 and section 4 of the Portal Act
would not affect its inclusion in hours worked for
purposes of the Fair Labor Standards Act.
29
C.F.R.
§
790.7,
“Preliminary”
“postliminary” activities:
and
(a) Since section 4 of the Portal Act applies only to
situations where employees engage in “preliminary”
or “postliminary” activities outside the workday
proper, it is necessary to consider what activities fall
within this description. The fact that an employee
devotes some of his time to an activity of this type is,
however, not a sufficient reason for disregarding the
time devoted to such activity in computing hours
worked. If such time would otherwise be counted as
time worked under the Fair Labor Standards Act,
section 4 may not change the situation. Whether such
time must be counted or may be disregarded, and
whether the relief from liability or punishment
afforded by section 4 of the Portal Act is available to
the employer in such a situation will depend on the
compensability of the activity under contract, custom,
or practice within the meaning of that section.40 On
the other hand, the criteria described in the Portal Act
have no bearing on the compensability or the status
as worktime under the Fair Labor Standards Act of
39 Colloquy between Senators Cooper and McGrath, 93 Cong.
Rec. 2297, 2298.
40 See Conference Report. pp. 10, 12, 13; statements of Senator
Donnell, 93 Cong. Rec. 2178–2179, 2181, 2182; statements of
Senator Cooper, 93 Cong. Rec. 2297, 2298. See also §§ 790.4 and
790.5.
96a
activities that are not “preliminary” or “postliminary”
activities outside the workday.41 And even where
there is a contract, custom, or practice to pay for time
spent in such a “preliminary” or “postliminary”
activity, section 4(d) of the Portal Act does not make
such time hours worked under the Fair Labor
Standards Act, if it would not be so counted under the
latter Act alone.42
(b) The words “preliminary activity” mean an activity
engaged in by an employee before the commencement
of his “principal” activity or activities, and the words
“postliminary activity” means an activity engaged in
by an employee after the completion of his “principal”
activity or activities. No categorical list of
“preliminary” and “postliminary” activities except
those named in the Act can be made, since activities
which under one set of circumstances may be
“preliminary” or “postliminary” activities, may under
other conditions be “principal” activities. The
following “preliminary” or “postliminary” activities
are expressly mentioned in the Act: “Walking, riding,
or traveling to or from the actual place of performance
of the principal activity or activities which (the)
employee is employed to perform.”43
41 See Conference Report, p. 12; Senate Report, pp. 47, 48;
statement of Senator Wiley, explaining the conference
agreement to the Senate, 93 Cong. Rec. 4269; statement of
Representative Gwynne, explaining the conference agreement to
the House of Representatives, 93 Cong. Rec. 4388. See also §
790.6.
42 See § 790.5(a).
43 Portal Act, subsections 4(a), 4(d). See also Conference
Report, p. 13; statement of Senator Donnell, 93 Cong. Rec. 2181,
2362.
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(c) The statutory language and the legislative history
indicate that the “walking, riding or traveling” to
which section 4(a) refers is that which occurs, whether
on or off the employer's premises, in the course of an
employee's ordinary daily trips between his home or
lodging and the actual place where he does what he is
employed to do. It does not, however, include travel
from the place of performance of one principal activity
to the place of performance of another, nor does it
include travel during the employee's regular working
hours.44 For example, travel by a repairman from one
place where he performs repair work to another such
place, or travel by a messenger delivering messages,
is not the kind of “walking, riding or traveling”
described in section 4(a). Also, where an employee
travels outside his regular working hours at the
direction and on the business of his employer, the
travel would not ordinarily be “walking, riding, or
traveling” of the type referred to in section 4(a). One
example would be a traveling employee whose duties
require him to travel from town to town outside his
regular working hours; another would be an employee
who has gone home after completing his day's work
but is subsequently called out at night to travel a
substantial distance and perform an emergency job
44 These conclusions are supported by the limitation, “to and
from the actual place of performance of the principal activity or
activities which (the) employee is employed to perform,” which
follows the term “walking, riding or traveling” in section 4(a), and
by the additional limitation applicable to all “preliminary” and
“postliminary” activities to the effect that the Act may affect
them only if they occur “prior to” or “subsequent to” the workday.
See, in this connection the statements of Senator Donnell, 93
Cong. Rec. 2121, 2181, 2182, 2363; statement of Senator Cooper,
93 Cong. Rec. 2297. See also Senate Report, pp. 47, 48.
98a
for one of his employer's customers.45 In situations
such as these, where an employee's travel is not of the
kind to which section 4(a) of the Portal Act refers, the
question whether the travel time is to be counted as
worktime under the Fair Labor Standards Act will
continue to be determined by principles established
under this Act, without reference to the Portal Act.46
(d) An employee who walks, rides or otherwise travels
while performing active duties is not engaged in the
activities described in section 4(a). An illustration of
such travel would be the carrying by a logger of a
portable power saw or other heavy equipment (as
distinguished from ordinary hand tools) on his trip
into the woods to the cutting area. In such a situation,
the walking, riding, or traveling is not segregable
from the simultaneous performance of his assigned
work (the carrying of the equipment, etc.) and it does
not constitute travel “to and from the actual place of
performance” of the principal activities he is employed
to perform.47
45 The report of the Senate Judiciary Committee (p. 48)
emphasized that this section of the Act “does not attempt to cover
by specific language that many thousands of situations that do
not readily fall within the pattern of the ordinary workday.”
46 These principles are discussed in Part 785 of this chapter.
47 Senator Cooper, after explaining that the “principal”
activities referred to include activities which are an integral part
of a “principal” activity (Senate Report, pp. 47, 48), that is, those
which “are indispensable to the performance of the productive
work,” summarized this provision as it appeared in the Senate
Bill by stating: “We have clearly eliminated from compensation
walking, traveling, riding, and other activities which are not an
integral part of the employment for which the worker is
employer.” 93 Cong. Rec. 2299.
99a
(e) The report of the Senate Committee on the
Judiciary (p. 47) describes the travel affected by the
statute as “Walking, riding, or traveling to and from
the actual place of performance of the principal
activity or activities within the employer's plant,
mine, building, or other place of employment,
irrespective of whether such walking, riding, or
traveling occur on or off the premises of the employer
or before or after the employee has checked in or out.”
The phrase, actual place of performance,” as used in
section 4(a), thus emphasizes that the ordinary travel
at the beginning and end of the workday to which this
section relates includes the employee's travel on the
employer's premises until he reaches his workbench
or other place where he commences the performance
of the principal activity or activities, and the return
travel from that place at the end of the workday.
However where an employee performs his principal
activity at various places (common examples would be
a telephone lineman, a “trouble-shooter” in a
manufacturing plant, a meter reader, or an
exterminator) the travel between those places is not
travel of the nature described in this section, and the
Portal Act has not significance in determining
whether the travel time should be counted as time
worked.
(f) Examples of walking, riding, or traveling which
may be performed outside the workday and would
normally
be
considered
“preliminary”
or
“postliminary” activities are (1) walking or riding by
an employee between the plant gate and the
employee's lathe, workbench or other actual place of
performance of his principal activity or activities; (2)
riding on buses between a town and an outlying mine
or factory where the employee is employed; and (3)
100a
riding on buses or trains from a logging camp to a
particular site at which the logging operations are
actually being conducted.48
(g) Other types of activities which may be performed
outside the workday and, when performed under the
conditions normally present, would be considered
“preliminary” or “postliminary” activities, include
checking in and out and waiting in line to do so,
changing clothes, washing up or show
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