A 6-2 decision by the Supreme Court supporting an overtime class action by workers at an Iowa pork processing plant means that employers will have to be more careful about recording and paying for hours employees are required to spend on the job site.

After a nine-year odyssey through the courts, 3,300 employees at Tyson Foods will finally be compensated for the time it took them to put on and take off protective gear required by the nature of their job at the beginning and end of each shift. Some, but not all, employees were paid for this extra time.

[Image credit: Bloomberg]

Employees who were not compensated for “doffing and donning” filed a lawsuit alleging that safety clothing was integral to their hazardous jobs and that it was company policy not to pay overtime for these activities, as required by the Fair Labor Standards Act. They also raised a claim under an Iowa wage law. The District Court certified class actions under both statutes, concluding that there were common questions to be resolved, even if not all of the workers wore the same gear.

Scott Michelman, a staff attorney at the employee advocacy group Public Citizen represented the workers. He believes that even if Justice Scalia had been part of the panel his clients would have been successful. “Based on his previous rulings, it is most likely he would have joined the dissent. That would have made it 6-3 instead 6-2 so it would not have changed the outcome,” he speculates.

Because Tyson failed to keep records of this time, the employees primarily relied on a study performed by industrial relations expert Kenneth Mericle. He conducted videotaped observations analyzing how long various people took putting on and taking off work gear and then averaged the time taken to produce an estimate of 18 minutes a day for the cut and retrim departments and 21.25 minutes daily for the kill department. Subsequently these estimates were added to the timesheets of each employee to ascertain which class members worked more than 40 hours a week and the value of the class-wide recovery.

The company contended that the varying amounts of time it took employees to doff and don different protective gear made reliance on Mericle’s sample improper, and that using it would lead to recovery for individuals who had not worked the requisite 40 hours. Nevertheless, the jury ruled against Tyson and awarded the class about $2.9 million in unpaid wages. Both the Eighth Circuit and the Supreme Court affirmed the jury verdict and the award.

“The Supreme Court held 70 years ago both that it was unfair for employees to have the burden of proving their hours and that if employers don’t meet their recordkeeping obligation, employees are entitled to prove their hours by ‘just and reasonable inference’,” Michelman says. “The Court applied that language here in a sensible way to recognize it is possible to extrapolate hours worked from the hours of other employees they worked alongside.”

“When you think of it, 20 minutes a day can add up pretty fast.”

Tyson’s attorneys also invoked the “de minimis rule” in the initial jury trial, arguing that the additional time was so small that the employers should not have to record or pay for it. But the jury sided with the workers. “When you think of it, 20 minutes a day can add up pretty fast. In fact our expert testified some of the members of the class were entitled to thousands of dollars in back wages,” says Michelman.

"We respect the judgment of the U.S. Supreme Court, and are disappointed with the result. However, we are also heartened by the divided Court’s consideration and analysis of serious issues affecting the sufficiency of proof required to maintain a class action under the Fair Labor Standards Act," said Tyson Foods General Counsel David Van Bebber in a written statement. "We are studying the opinion and, in particular, the issue of whether damages can be lawfully allocated to ensure that uninjured class members do not recover from the jury’s lump sum award."

Members of the class will not see a dime until the District Court schedules a hearing to allocate damages and it is unclear when this will happen. Michelman acknowledges this could also trigger further appeals.

Nevertheless, he says this is an incredibly important decision. “Now when large corporations act wrongfully to deprive employees of small amounts of money, they can band together and take them to court. And the strong message to employers is that they must keep proper records and pay their employees for all the time they have to spend on the job,” he says.

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