M.H. Fox v. Tyson Foods, Inc.

On Sept. 22, 2010, Judge Clay D. Land issued a ruling moving the trial date in Williams v. Tyson Foods, Inc., No. 1:07-cv-93 CDL (M.D. Ga.), forward to February 14, 2011.

On March 16, 2010, Judge Clay D. Land of the U.S. District Court for the Middle District of Georgia denied Tyson Foods' motions for decertification, and largely denied Tyson's motions for summary judgment.   

Judge Land disagreed with Tyson's claims that there were too many variations in pay practices and time for putting on and taking off a variety of sanitary and safety gear at the eight plants that are the subject of the litigation for any unified case to continue [link to decertification ruling].  Judge Land agreed with the plaintiffs, that even with the variations, all of Tyson's chicken processing plants operated under the company's mastercard policy for calculating time worked.

"Tyson's common practice of paying plaintiffs by the mastercard method weighs heavily against decertification," Judge Land wrote.  He found for the plaintiffs that there is sufficient evidence to go to trial, denying Tyson’s motions to decertify collective actions at the eight “test” plants.   

Judge Land also denied Tyson's summary judgment motion based on the Portal-to-Portal Act because "there is a genuine issue of material fact as to whether the donning, doffing, and sanitizing activities are 'integral and indispensable' to Plaintiffs' principal work activities." [link to summary judgment ruling]

Judge Land denied in part summary judgment sought at the two unionized plants, Corydon and Dardanelle.  While agreeing with Tyson that Eleventh Circuit law deemed the donning and doffing to be “clothes changing” and thus excluded under collective bargaining agreements that did not specifically require such activities be compensated, he held that post-donning and pre-doffing time that is "found to be integral and indispensable to the employee's principal activities" was still at issue and left claims for trial.

The first test case set for trial concerns the Tyson plant in Dawson, Georgia (Williams v. Tyson Foods, Inc., 1:07-cv-00093-CDL (M.D. Ga.)), and is scheduled to begin on August 16, 2010 at the United States Courthouse in Columbus, Georgia.   After the Williams trial, the court will either transfer the other test cases back to their home jurisdictions for trial or reconsider his ruling.

Cohen Milstein currently represents over 19,000 employees who seek unpaid overtime and who work or worked in Tyson Foods' chicken-processing plants.  These employees are not paid for the time they spend putting on, taking off, cleaning, and sanitizing the sanitary and protective equipment that they must wear to perform their jobs on the chicken-processing line.  In essence, Tyson has argued that putting on, taking off, cleaning, and sanitizing this gear is not "work," or is "preliminary and postliminary" to the employees' jobs.  But both Chief Magistrate Judge Putnam and United States District Judge Bowdre of the United States District Court for the Northern District of Alabama have rejected Tyson's arguments that its employees should not be paid for this time, which can total up to 20 minutes a day.

In a similar case against Perdue Farms, Cohen Milstein's representation resulted in a $10 million settlement for the workers, as well as an agreement by Perdue to pay its chicken-processing employees for time spent putting on and taking off their protective gear.

If you are an hourly-paid employee that has questions about whether you are entitled to pay for activities (like putting on protective gear, downloading assignments at the beginning of the day, or cleaning or putting away tools at the end of the day) that your employer requires but does not pay you for doing, please do not hesitate to call Christine Webber, one of the attorneys at Cohen Milstein representing Tyson Foods chicken-processing workers and focusing on employment law, at 1-888-347-4600 or email cwebber@cohenmilstein.com.