3rd Circuit Reverses Tyson Donning and Doffing Case Decision

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.

In November 2005, the Supreme Court decided the FLSA required employers to compensate workers for time spent walking to and from work areas and putting on and taking off safety gear (See US Supreme Court to Hear Protective Clothing Dispute ). The high court agreed to review several decisions on the issue to settle disagreements among the federal appellate courts.

In 2002, Perdue Farms agreed to two $10 million settlements to pay some 60,000 workers for time spent obtaining, putting on, sanitizing and removing protective clothing and gear (See Perdue Settles Back Pay Suit for $10 Million ).

In 2006, another poultry processing company agreed to pay $1.2 million in back pay to more than 5,000 current and former employees for unpaid overtime spent putting on and taking off protective clothing (See Poultry Processing Company to Settle Back Pay Suit for $1.2 million ).

The latest opinion in De Asencio v. Tyson Foods Inc. is here .