Tyson, plant's workers closer to settlement

Firm would pay $7.7 million in ‘donning and doffing’ suit

A federal judge in Tennessee has given preliminary approval for a settlement in which Tyson Foods would pay $7.75 million to workers at the company's Goodlettsville facility.

Workers filed a lawsuit claiming that Tyson should pay workers for putting on and taking off -- or "donning and doffing" -- required protective clothing at the beginning and end of each day and during a 30-minute, unpaid lunch period.

Molly Elkin, a partner with Woodley & McGillivary, a Washington, D.C.-based law firm representing the plaintiffs, said 6,800 current and former employees joined the class-action lawsuit.

Elkin said employees had to put on protective clothing, such as frocks, belly guards, arm guards and sleeves "hundreds of feet and four flights of stairs" away from where they had clocked in. She said the punch-in indicated that the employee was present, but Tyson did not start paying employees until the first piece of meat arrived at their station.

She said it was the second donning and doffing lawsuit at that plant. Lawsuits related to donning and doffing protective gear have been ongoing against Tyson plants around the country throughout the past 10 years, according to the company's annual reports.

"We understand from our clients that Tyson has changed their practices," she said of employees at the Goodlettsville plant. "It's a long time coming."

According to Tyson's statement of facts to the court, the company paid certain employees an additional four minutes of time to compensate for putting on and taking off protective clothing. The company said it had developed the standard in cooperation with the U.S. Department of Labor.

Elkin said about 10 percent of the plant's employees were given the extra four minutes and it did not fully cover the work they had to perform.

Tyson spokesman Worth Sparkman said he could not provide comment.

"The matter has been resolved to the mutual satisfaction of the parties," he said.

Other Arkansas companies are being sued under the same law.

Josh Sanford, the managing member of Arkansas-based Sanford Law Firm, said his firm has ongoing donning and doffing cases in Arkansas against the ConAgra Foods plant in Russellville, Rogers-based Ozark Mountain Poultry and Siloam Springs-based Simmons Foods.

Notice to about 2,200 current and former workers at Ozark Mountain Poultry went out last week, Sanford said.

A spokesman from ConAgra declined to comment. Ozark Mountain Poultry and Simmons Foods did not return requests for comment.

Sanford said there's an additional donning and doffing case filed against the Gerber plant in Fort Smith. Gerber did not respond to a request for comment.

Denise Oxley, general counsel for the Arkansas Department of Labor, said in an email that if donning and doffing is "integral and indispensable" to the employee's principal work activities, it constitutes work time and is compensable time under the federal Fair Labor Standards Act and the Arkansas Minimum Wage Act.

"Where employees are required by law, by rules of the employer, or by the nature of the work to don clothing and personal protective equipment on the employer's premises, it will generally be compensable," Oxley said.

She said there is an exemption for unionized employees. A provision of the Fair Labor Standards Act provides an exclusion for work time for "changing clothes or washing" at the beginning or end of the workday if it is excluded by express terms, by custom or by practice under a collective-bargaining agreement, she said.

The exemption was at issue in Sandifer et al. v. United States Steel Corp., a U.S. Supreme Court case decided in January, and the court upheld the rule.

"Please note that it was not disputed by any party or the court that the donning and doffing in the Sandifer case would have been compensable time if it had involved a nonunion employer," Oxley said.

Sanford said it can be expensive for state and federal departments of labor to sue over donning and doffing cases. Time and motion studies are sometimes necessary when there aren't digital records of when employees start dressing, he said. That can happen when employees dress before clocking in.

"If the employees don't complain, there's no one to watch out for them," Sanford said. "The risk [for companies] is that they might owe a lump sum payment. The reward is that they can eliminate 20 to 30 minutes of pay per employee per shift per day."

Sanford said there hadn't been many cases in Arkansas about donning and doffing.

"It's definitely a point of contention between the companies and people like me who sue on behalf of employees," he said. "Most of the guidance comes from other states because the Fair Labor Standards Act applies to all the states."

In the Tyson case in Tennessee, the judge ruled that donning and doffing protective cloth was compensable, according to court documents.

"The Tyson decision is consistent with the conceptual framework with why we are filing these cases," Sanford said.

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