In instructing the jury in the Fair Labor Standards
Act (FLSA) case, the District Court stated that in
considering whether the workers' donning, doffing and
washing was "work" under the FLSA, the jury
must consider whether the activities involved physical or
mental exertion, according to the appellate court
opinion. The District Court further told the jury to ask
the questions: Is the clothing heavy or cumbersome, or is
it lightweight and easy to put on or take off?, and Does
an employee need to concentrate to wash their hands or
gloves or put on or take off these clothes?
The 3
rd
Circuit panel concluded that it was an error for the jury
instruction to direct the jury to consider whether the
gear was cumbersome, heavy, or required concentration to
put on and take off, saying the instruction in effect
impermissibly directed the jury to consider whether the
poultry workers had shown sufficiently hard work, rather
than some form of activity controlled or required by the
employer and pursued for the benefit of the employer. As
a result, the opinion said, the jury did not reach the
questions of whether the work was minimal or whether the
workers had been paid extra minutes to compensate for
such time.
In its argument the appellate panel cited a
previous 9
th
Circuit decision in Ballaris v. Wacker Siltronic Corp.,
which noted that, generally, activities before and
after a primary task also need to be compensated
as long as those activities are an integral and
indispensable part of the principal activities.
Additionally, the workers' counsel argued that
"[A]ny instruction that equates work with the need
for any level of physical or mental exertion directly
contradicts the [Supreme Court's] decision in IBP v.
Alvarez, where the court expressly stated exertion is
not, in fact, necessary for an activity to constitute
work under the FLSA."
The case was filed in 2000 by a group of current
and former chicken processing plant workers who claimed
Tyson did not pay them for time it required its employees
to put on and take off safety and sanitary clothing and
to wash, pursuant to government regulations and corporate
or local policy and practice. The workers performed these
activities six times a day: before and after their paid
shifts and two daily meal breaks.
The gear required generally includes a smock,
hairnet, beard net, ear plugs, and safety glasses.
Additional sanitary and protective items that certain
employees wear include a dust mask, plastic apron, soft
plastic sleeves, cotton glove liners, rubber gloves, a
metal mesh glove, and rubber boots, the opinion
said.
Tyson argued that certain of the employees receive
an extra 15 minutes of compensation "which is enough
to fully compensate the plaintiffs for the very
activities that are the basis for this suit."
However, a Tyson witness testified at trial that
employees in the "receiving, killing, and picking" and
"evisceration" departments do not receive the extra 15
minutes of compensation.
The jury returned a unanimous verdict finding
plaintiffs had not "provided representative evidence that
[the activities at issue] are 'work'" for purposes of the
FLSA, and based on the jury's verdict, the District Court
ruled for Tyson Foods.
The appellate court reversed the District Court
decision and sent the case back to the lower court for a
new trial with new jury instructions.