Cohen Milstein was lead counsel in a collective action involving FLSA claims at over 40 Tyson chicken processing plants, which ultimately resolved the claims of approximately 17,000 chicken processing workers who had been denied compensation for donning and doffing required safety and sanitary equipment. On September 15, 2011, the Court granted final approval to a $32 million settlement.
Approximately 17,000 employees at 40 Tyson Foods’ chicken-processing plants claimed that they were unpaid for the time they spent 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 violation of Fair Labor Standards Act. Plaintiffs claim that it can take up to 20 minutes a day to don and doff such safety and sanitary gear.
The gear includes plastic sleeves, plastic aprons, smocks, rubber and cotton gloves, hairnets, earplugs, and, for employees who work with knives or scissors, mesh gloves and hard plastic arm guards. Employees must put on and sanitize the gear before their shifts; take off, clean, and stow the gear after their shifts; and put on and take off the gear at the beginning and end of breaks.
Tyson Foods calculates paid time for most employees with departmental time cards called “mastercards” and argued that putting on, taking off, cleaning, and sanitizing this gear is not “work,” or is “preliminary and postliminary” to the employees’ jobs.
In June 1999, 11 plaintiffs filed Fox v. Tyson Foods, Inc., No. 99-cv1612 (N.D. Ala. 1999), a nationwide FLSA collective action. Plaintiffs sought conditional certification and issuance of notice under section 16(b) of the FLSA. Many individuals filed consents to join Fox. On October 15, 2006, the district court denied plaintiffs’ motion for conditional certification and issuance of notice. The court retained jurisdiction over the three named plaintiffs from the Albertville, Alabama facility, whose claims were ultimately resolved. The court severed seven named plaintiffs from other facilities, and transferred their claims to other district courts.
Following the denial of conditional certification, multiple collective actions involving one or more facilities were filed in 2007. In September 2007, the Judicial Panel on Multi-District Litigation (“JPML”) issued an order transferring 20 collective actions to the United States District Court for the Middle District of Georgia for coordinated pre-trial proceedings. Those and other collective actions filed in that district were assigned to District Judge Clay D. Land. In 2008, six additional collective actions were transferred to Judge Land by the JPML as tagalong actions.
In January 2008, defendant agreed to conditional certification for all the MDL actions. In April 2008, notice was sent to all hourly poultry processing workers who had worked in relevant positions at the MDL facilities during the preceding three-year period. At some MDL facilities, the limitations period was extended due to tolling orders entered by the transferor courts before the MDL transfer order was issued. Notice recipients were provided 60 days to join the relevant MDL action. Notwithstanding the 60-day period, defendant agreed to accept all otherwise valid consents filed by opt-in plaintiffs through December 31, 2008.
On March 16, 2010, Judge Clay D. Land 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 within each of the eight plants that were selected as test cases for any unified case to continue. 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.”
Finally, 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.
Case name: In Re Tyson Foods, Inc. FLSA Litigation, MDL Docket No. 1854; 4:07-md-01854-CDL, United States District Court for the Middle District of Georgia