Due to the recent ruling in Gomez v. Tyson Foods, Inc., 2013 WL 5516200 (Oct. 2, 2013), production workers at a Tyson Foods plant in Nebraska will now get paid for the actual time it takes them to “don and doff” their protective and sanitary gear. Previously workers were only paid an estimated number of minutes per day to compensate them for the time it took them to change into and out of their gear and walk to and from the production line. In early October, the United States District Court for the District of Nebraska held that paying an estimated wage for donning and doffing activities violated the Fair Labor Standards Act provisions for minimum wage and overtime compensation, and awarded aggrieved workers over $3.3 million in damages.
Tyson originally tried to argue that the gear, such as boots, gloves, mesh sleeves, hair and beard nets, safety glasses and knives, were personal clothes, thus exempted from the FLSA protection. The court, however, found that the “clothes” were in fact “integral and indispensable” to the worker’s labor, were donned for Tyson’s benefit, and began and ended the continuous workday. The court also rejected defendant’s argument that FLSA rights were waived under the worker’s union contract, finding instead that FLSA rights cannot be bargained away. Thus, before trial, the court granted plaintiffs' summary judgment motion on liability, finding as a matter of law that plaintiffs' should be paid for their actual time. As such, the only issue left for the jury at trial was the amount of damages to be awarded to workers for their lost wages.
To decide damages, the judge ruled that the jury would decide the issue of how long it took the workers to change into and out of their protective and sanitary gear. Once the jury decided this fact, the judge would then calculate compensatory and liquidated damages. Based on workplace observations and studies, plaintiffs' expert testified that processing workers took 18.79 minutes for donning and doffing activities, while “kill floor” workers took 26.10 minutes. Tyson did not proffer their own expert, but instead, attempted to discredit the plaintiff’s expert through cross-examination and contradictory witness testimony. Under the FLSA, a plaintiff usually must prove with a preponderance of evidence the amount of compensable hours. However, when an employer has not kept accurate track of hours worked, as is this case, this burden is relaxed. Plaintiffs need only to provide a “just and inference” of the amount of uncompensated hours. Once this has been done, the burden shifts to employer to show with a preponderance of evidence that plaintiff’s estimate is not reasonable.
Here, even under this relaxed burden, defendant's strategy to discredit plaintiffs' expert proved successful. The jury seemingly found defendant's discussion of the deficiencies with the expert’s methodology persuasive, ultimately finding only 5.79 minutes of compensable activity for kill department workers, and only 4.56 minutes for processing workers. Based on these calculations, the judge awarded the workers over $1.6 million in compensatory damages and an additional $1.6 million in liquidated damages, rejecting Tyson’s lowball estimates that ranged from $160,918 to $667,648.
The Simon Law Firm, P.C. has years of experience handling cases such as this one. For any questions, please feel free to contact us.