Tyson Foods

Meat of the Matter: The cost of doing business?

Tyson Foods is appealing to the Supreme Court a class-action judgement ordering the company to pay employees for time spent gearing up for work. But even if they win, they stand to lose.

Tyson Foods is petitioning the Supreme Court to overturn a judgment in a long-running court case in which employees claimed they were not fully paid for time spent donning and doffing protective gear before 2010. Plaintiffs in the case include current and former employees at a Tyson pork processing plant in Storm Lake, Iowa.

The employees won their case in U.S. District Court and were eventually awarded $5.8 million in damages and attorney’s fees. But Tyson appealed the judgment to the Eighth Circuit Court of Appeals, based in St. Louis, which upheld the district court’s ruling.

Tyson is now appealing to the Supreme Court, arguing in its petition that the circuit court incorrectly certified the employees’ lawsuit as a class action case. The Supreme Court agreed to consider hear the appeal and in the process clarify wage-and-hour verdicts against Tyson and Wal-Mart Stores as to how large class action suits are certified by the courts.

As is the case with most legal battles, this one started years ago.

In 2007, line workers at the Tyson pork plant in Storm Lake, Iowa, sued the company, claiming that they were not being paid for the time required each day to put on and take off mandatory safety gear and sanitation items, such as boots, aprons, hair nets and gloves, nor for the time it took to prepare and sanitize equipment before and after their shift.

Tyson paid its line employees at the plant an extra four to seven minutes’ pay a day to compensate for time spent preparing for their shift. But the employees’ attorneys argued that the required activities routinely took much more time, in some cases up to 30 minutes a day, including time often spent waiting for company personnel to issue required equipment. In 2010, Tyson increased the time allowed for so-called “donning and doffing” to 20 to 22 minutes of paid “time per shift for all hourly employees.

The argued that Tyson violated the federal Fair Labor Standards Act and Iowa’s Wage Payment Collection Act by failing to pay line employees for time worked and for failing to pay overtime when actual time worked was in excess of 40 hours in a week. A federal court certified the case as a class action, and that’s where the company’s legal appeal has focused.

As a reported by Reuters, Tyson’s legal representatives argue that the lower courts did not adhere to the Supreme Court’s 2011 decision in Wal-Mart v. Dukes by allowing the plaintiffs — the Storm Lake line employees — to demonstrate injury to a subset of employees and then extrapolate them to the entire class in order to calculate damages.

A better way to go

As a legal argument, that stance may prove to be a solid one. As an analysis on Lawyersand Settlements.com noted, Tyson’s brief filed with the Supreme Court argued that the Storm Lake plaintiffs should not have been certified as a class because there were differences in the amount of time that group of employees spent putting on and taking off their protective gear.

And in fact, the courts have treated such lawsuits with varying degrees of acceptance. Most jurisdictions lean toward compensatory, rather than punitive judgments, reasoning, correctly, that employers should be accorded the presumption that their workplace rules are designed to promote efficiency and protect product integrity.

Truthfully, one of the complicating factors in donning and doffing suits on behalf of meat and poultry employees has been the increasingly stringent sanitation measures both industry and regulators have imposed on processing operations. With the focus on fail-safe final product sanitation, the amount of time spent putting on and taking off sanitary clothing and equipment — and making sure those items are properly collected at the end of a work shift—has increased significantly, a factor many courts have failed to acknowledge.

Unfortunately, the majority of federal judges ruling on these donning and doffing cases also have no clue what life is like for the actual people represented in the class-action suits that appear on their dockets. I doubt if any of them ever would, or could, spend a day on the job in the typical meatpacking or poultry processing plant. They have no clue how hard the work is, how difficult the working conditions are and most importantly, how little each employee takes home at the end of the week.

As of 2014, Tyson was litigating nine different lawsuits involving donning and doffing and/or uncompensated overtime pay for employees at plants in Iowa, Nebraska, Kansas and Tennessee. The attorneys’ fees for the plaintiffs in such cases typically run as high as $4 or $5 million — and that’s not counting the layers of appeals as the cases wind through the federal system — so you can imagine what Tyson’s attorneys are billing.

Tyson Foods has created an enviable business legacy, a track record of success in a highly competitive industry sector that has left many a formerly big-time player distressed and ultimately dissected or even dissolved. And I understand the logic that says fighting these cases, rather than letting jury verdicts or forced settlements set a precedent, could actually end up being less expensive in the long run.

But there’s a reason Tyson is fighting on multiple fronts in several different states on related issues of time paid for donning and doffing requirements: Such activities add significantly to an employee’s work day, and it’s just not fair. They’re earning a rock-bottom wage as it is, and for performing difficult, dangerous work.

Rather than squeezing the employees as tight as possible, then fighting every step of the way in the courts, it would be far better, more equitable and ultimately better for all concerned to negotiate a compensation agreement that could obviate these lawsuits.

The bottom line is pretty straightforward: Tyson needs to do the right thing and pay for the time its employees spend keeping both the food products and the work force safe.

Dan Murphy is a food-industry journalist and commentator