Judgments against Tyson reversed in donning-doffing suits

Reversing a $19 million judgment in favor of hourly workers at a Nebraska pork processing plant, the Eighth Circuit held that Tyson Foods was entitled to judgment as a matter of law on their collective and class action wage-hour claims. The named plaintiffs had never filed timely consents to join an FLSA collective action, and the Nebraska wage collection statute offered no recourse because Tyson never “agreed” to pay the disputed wages. Therefore, the appeals court reversed the judgment and remanded, instructing the court below to enter judgment for Tyson. In a separate decision, the appeals court reversed a $5 million judgment in favor of Tyson workers at another Nebraska plant.

Hourly Tyson employees in the kill, cut, and conversion departments of a Nebraska pork processing plant claimed that the company failed to properly compensate them for required pre- and post-shift activities. Tyson was paying for up to 24 minutes per shift–20 minutes of “K-code” time for standard pre- and post-shift tasks, and an additional 1 to 4 minutes for knife users, who had to don additional protective gear. Contending this was insufficient to cover the time spent on these duties, a group of workers filed a collective overtime action under the FLSA along with a Rule 23 class action, alleging violations of the Nebraska Wage Payment and Collection Act. The district court certified the state-law class action but, because none of the plaintiffs timely filed consents, it never certified the collective action. After granting summary judgment to the employees on most liability issues, the court held a bench trial on damages and the employer’s good-faith defense, and ruled in the employees’ favor, awarding the class nearly $19 million in compensatory and liquidated damages.

A costly procedural error
The named plaintiff filed a consent to join the FLSA collective action, but he didn’t do so until well after the statute of limitations had expired. As such, the district court should have dismissed the FLSA claim for failure to file a timely consent, the Eighth Circuit held. Rejecting the employee’s after-the-fact assertion that he was merely bringing an individual FLSA action, and so he did not have to file a written consent, the appeals court noted that his complaint was styled as a “Class Action and Collective Action Complaint,” and that it was expressly brought “by themselves and on behalf of other similarly situated individuals.” In a Joint Planning Report filed with the court, the parties specified a date by which a motion for conditional certification of a collective action would be filed. Ultimately, the employees never moved for certification, but they did file 55 consents to join the collective action—“a filing that would have been nonsensical if the complaint alleged an individual action,” the appeals court pointed out. Also, the named plaintiff never amended his complaint to allege an individual FLSA action. Since he had pleaded a collective action, he could not proceed as a party plaintiff to that action without giving timely consent in writing. He failed to do so. And, because none of the named plaintiffs filed the required consents, the district court erred in permitting their FLSA claims to proceed.

State statute no recourse
As for the state law claims, the district court had rejected Tyson’s contention that the Nebraska Collection Act only provided a cause of action to recover wages that were “previously agreed to,” and Tyson never agreed to pay the disputed wages. Denying summary judgment, the court reasoned that hourly workers can use the statute to collect any wages due and unpaid. However, the Eighth Circuit found Tyson’s argument persuasive, concluding that an employee’s claim that he is entitled to additional pay under the FLSA is not cognizable under the Nebraska Collection Act.

The employees cited a Nebraska Supreme Court ruling in favor of employees in their Collection Act suit against the city which, it found, had vaguely agreed to pay “the appropriate rate of pay” for their duties. But that holding was inapposite. There, the employees alleged they were misclassified and improperly paid as a result. That was not the issue here. Rather, the employees asserted that they were not paid all they were due under the FLSA for the amount of time they spent performing pre- and post-shift tasks. “That the employees might have been underpaid according to the terms of the federal statute, however, does not establish that Tyson previously had agreed to pay the compensation that they seek, such that the employees may recover under the Collection Act,” the appeals court explained. An employee “cannot use the Collection Act to enforce rights that he may possess under the FLSA.”

No “agreement” here
The employees insisted that Tyson had agreed to pay them what they were due, and thus, their Collection Act claims were cognizable. They cited a 1998 memorandum from Tyson’s predecessor in which the employer “voluntarily” implemented a system “to compensate employees for the reasonable time associated with certain pre- and post-shift activities.” Yet subsequent language in the document specifies that the compensable time would be limited to 4 minutes. A 1999 “agreement” between the predecessor and the DOL likewise offered no support, since the letter states that the DOL “agrees that four minutes per day is sufficient” to compensate the workers. A 2010 memorandum updating the “K-code” policy came after the fact, so the workers could hardly base their claim on that putative “agreement.” Finally, an employee’s “bill of rights” and a clause in the company HR manual were insufficient to show an agreement between Tyson and the employees to pay the wages at issue; both documents disclaim any intent to create a contract to pay wages for a specific amount of time. Because the employees presented no evidence that Tyson previously agreed to pay the wages to which they claim they were entitled, their Collection Act claims failed as a matter of law.

Unionized plant, same outcome
Unionized workers at another Tyson plant met a similar fate. The appeals court vacated a $5 million judgment in their favor following a jury trial ($1.6 million of which was to go to the state treasurer as a penalty for willful nonpayment of wages) in this case. Here too, the party plaintiffs failed to timely file consents to join an FLSA collective action; as such, the lower court should have disposed of their federal claims.

Also, the appeals court found no basis in the parties’ collective bargaining agreement (CBA) on which to assert an agreement to provide additional pre- and post-shift pay. Although Tyson did pay an additional 4 minutes per shift, as it did at its other plant, the CBA did not specify any compensation for the pre- and post-shift activities at issue. Also, an integration clause within the CBA warranted the presumption that the contract was complete by itself, and that there were no other agreements between the parties.

As in the other case, the employees also attempted to resort to the FLSA as the source of their entitlement to additional pre-and post-shift compensation. Again, though, the appeals court held claims for additional pay under the FLSA cannot be raised through the Nebraska Collection Act. There was no submissible case under the state statute. (Acosta v Tyson Foods, Inc., dba Tyson Fresh Meats, 8thCir, 165 LC ¶36,372.)

Visit our News Library to read more news stories.