Timesheet

Court Rules Expert Testimony Not Needed in a Don and Doff Overtime Claim

Written on Wednesday, November 11th, 2020 by T.C. Kelly
Filed under: Expert Opinions, Research & Trends, Working with Experts

Rodney Tygar brought an unpaid overtime claim against Precision Drilling Corp. and related companies. Tygar contended that his employer failed to pay workers employed as rig hands for the time they spent putting on personal protective equipment (PPE) prior to their shift and removing it after the shift ended.

Tygar presented expert testimony in support of the overtime claim. The district court excluded the testimony and granted summary judgment to Precision. The Court of Appeals for the Third Circuit reversed after concluding that expert testimony was not needed to prove the claim.

Facts of the Case

Tygar was employed as a rig hand to work on oil and gas rigs. Pursuant to company policies and in compliance with federal regulations, Tygar was required to wear PPE during his work shifts.

The PPE included flame-retardant overalls, steel-toed boots, gloves, goggles, earplugs, and hardhats. The PPE is necessary because it protects against common hazards that rig hands face, including chemical exposures, falling objects, slippery surfaces, and electrical shock.

Rig hands are covered with chemicals at the end of their shifts, some of which are caustic. It was undisputed that the overalls and other PPE reduced the risk that workers would be harmed by exposure to those chemicals.

It takes time to don (put on) and doff (remove) PPE. Precision required its rig hands to don the PPE before clocking in for a shift and to remove the PPE after clocking out. That policy prevented rig hands from being compensated for their donning and doffing time.

If Tygar had been “on the clock” while donning and doffing, Precision would have owed him overtime. Believing that the Fair Labor Standards Act (FLSA) required Precision to compensate rig hands for their donning and doffing, Tygar brought a collective action for unpaid overtime on his own behalf and on behalf of rig hands who were subject to the same compensation policy.

Summary Judgment

The FLSA requires employers to include donning and doffing in an employee’s compensable “hours worked” if wearing the equipment is “integral and indispensable” to their principle job duties. Since federal regulations require employers to provide PPE to employees who are exposed to chemical irritants and hazards, it should seem obvious that donning PPE is an integral and indispensable part of working safely as a rig hand.

The trial judge, however, decided that the “integral and indispensable” question could only be resolved by expert evidence. The court was apparently not certain that caustic chemicals are actually harmful.

Tygar proffered an expert report prepared by Ronald Bishop, an expert in chemical hygiene. Bishop’s report discussed “the health risks associated with exposure to certain hazardous materials on the rigs, in addition to the benefits of wearing PPE.”

In particular, Bishop offered four opinions. First, Precision’s rig hands come into contact with chemicals and substances that are hazardous. Second, PPE protects workers from those substances. Third, PPE becomes coated with hazardous substances as rig hands work. Fourth, it would be unsafe to leave the worksite before removing soiled PPE.

The court denied summary judgment motions filed by both parties after concluding that whether wearing PPE is integral and indispensable to the duties of a rig hand was a disputed factual question. Precision then filed a Daubert motion challenging Bishop’s methodology.

The trial court granted the Daubert motion, excluded Bishop’s testimony, and invited Precision to renew its summary judgment motion. After deciding that whether PPE is integral and indispensable to the job of a rig hand can only be determined on the basis of expert testimony, the court granted summary judgment to Precision because no admissible expert testimony could establish that fact.

Daubert Analysis

The Third Circuit described Daubert as requiring an analysis of qualifications, reliability, and fit. The “overriding consideration” is whether the expert evidence will assist the judge or jury in deciding the facts.

The appellate court did not question Bishop’s qualifications or the relevance (“fit”) of his opinions to determining whether donning and doffing PPE is an integral and indispensable part of a rig hand’s duties. Rather, the court affirmed the district court’s decision that Bishop’s methodology was unreliable.

The district court concluded that Bishop had insufficient factual support for his opinion that it was important for rig hands to don and doff their PPE on site. According to the court, Bishop lacked quantitative data about the amount of chemical exposure that would be hazardous.

Why that data is necessary to Bishop’s opinion is unclear. The amount of exposure is likely to change from day to day and worker to worker, depending on the hazardous substances with which they happen to be splattered on a given shift. The court did not dispute that the chemicals are hazardous or that PPE protects workers. Just how hazardous the chemicals might be at any given moment is not a fact with obvious relevance to Bishop’s opinion. Still, in a rather cursory analysis, the Third Circuit decided that the district court did not abuse its discretion in excluding Bishop’s testimony.

Need for Expert Testimony

After satisfying itself that Bishop’s expert testimony was inadmissible, the court decided that it was also unnecessary. A work activity is indispensable if an employee must engage in that activity to perform his or her job. Wearing PPE is a job requirement, so rig hands were not allowed to work if they did not first put on their PPE.

The district court steered an incorrect course when it based summary judgment on the failure to prove the degree of toxicity of the chemicals to which rig hands are exposed. The relevant question is whether rig hands could dispense with PPE and still perform their jobs. Tygar presented lay evidence that it would be impossible to perform the work of a rig hand without donning and doffing PPE. The FLSA does not require donning and doffing evidence to be presented in the form of expert testimony.

Since expert testimony was unnecessary, the Third Circuit reversed the district court’s summary judgment decision. The appellate court left it to the district court to decide whether the lay evidence creates a jury issue as to whether donning and doffing PPE is indispensable to the work of a rig hand.

 

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

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