Donning and Doffing

11 November 2015

By Allison Torres Burtka

The U.S. Supreme Court is set to decide a case involving workers at a Tyson Foods, Inc., plant who allege that the company failed to pay them overtime for donning and doffing protective and sanitation gear that they were required to wear while working, and for time spent walking to and from their workstations.

The Court heard oral arguments in Tyson Foods, Inc. v. Bouaphakeo on November 10th. Consumer advocates are watching the case because of its potential effect on wage and hour law and on the class action mechanism, which allows people injured in similar ways to hold their wrongdoers accountable as a group. Often, pursuing such claims individually is impossible because the individual claims are too small to justify the time and expense of a lawsuit.

“If the Supreme Court sides with Tyson, it could allow companies to cheat their workers by not paying proper wages,” said Public Citizen Litigation Group Staff Attorney Scott Michelman, who represents the workers.

The Fair Labor Standards Act (FLSA) established standards that employers must meet, including standards for overtime pay and recordkeeping. It requires employers to pay certain types of workers overtime if they work more than 40 hours per week. Peg Bouaphakeo filed suit on behalf of more than 3,300 workers at Tyson’s Storm Lake, Iowa, plant as a collective action under the FLSA, and as a class action under Rule 23 of the Federal Rules of Civil Procedure. The plaintiffs’ claim was that Tyson violated the FLSA and Iowa state law by not paying them the required overtime.

Tyson did not keep track of its workers’ donning, doffing, and walking time. Without such records, the plaintiffs relied on individual timesheets and representative proof—including a time study conducted by an expert, using a representative sample of 744 workers—to show the time they spent on these tasks. The company said such representative proof is insufficient, and the class should be decertified. The plaintiffs say the Supreme Court’s 1946 decision in Anderson v. Mt. Clemens Pottery Co. allows this representative proof.

The federal government filed an amicus brief in support of the workers, noting: “For nearly 70 years, the Mt. Clemens framework has been essential to effective enforcement of the FLSA because it allows . . . private plaintiffs to establish the amount of unrecorded work performed by a group of employees using ‘representative testimony from a sampling of [the] affected employees.’”

Before the case made its way to the Supreme Court, it went to trial, and the jury sided with the plaintiffs and awarded them damages. Tyson appealed, and the appellate court affirmed. Tyson then asked the Supreme Court to take the case. Among the issues presented to the Court, the appropriateness of representative proof figured prominently in the justices’ and the lawyers’ discussion at oral argument.

Carter Phillips, who argued the case for Tyson, and David Frederick, who argued the workers’ case, painted different pictures of how much the workers’ gear—and the time needed for donning and doffing—varied. Phillips said the workers’ jobs “required widely differing amounts of time” to perform these tasks.

Frederick said the differences in time and gear were minimal and were accounted for in the averages the plaintiffs used. He explained, “we’re talking about a difference between a Kevlar belly guard and a Plexiglas belly guard or a . . . metal mesh belly guard. We’re talking about the same basic kinds of gear.”

Frederick emphasized that if Tyson had kept adequate time records, these issues would be unimportant. When Justice Anthony Kennedy asked Frederick, “Can the employer be charged with not keeping adequate records by not following every single person every part of that person’s day? . . . Can the employer really keep records for every single employee?” Frederick responded, “It’s actually simpler than that, Justice Kennedy. It’s where you place the time clock. Had they put the punch clock right outside the locker room so that the workers, as soon as they went in the locker room, punched in, this problem would have been eliminated.”

Assistant to the Solicitor General Elizabeth Prelogar presented the federal government’s position at oral argument, noting that “it is the Department of Labor’s position here that Tyson was in violation of the FLSA, both by not keeping the actual records and by not fully compensating the employees for the time worked in this case.”

Several of the justices appeared skeptical of Tyson’s arguments. Justice Sonia Sotomayor said to Phillips, “I’m completely at a loss as to what you’re complaining about,” and Justice Anthony Kennedy told him, “I just don’t understand your arguments.”

“The case is important for Rule 23 class actions, FLSA wage and hour, and counterpart state laws,” Michelman said after oral argument. If the Supreme Court says workers can’t use expert testimony to establish time worked the way they did in this case, “that would make it very difficult for workers—and possibly others as well—to vindicate their rights,” he said.

The justices seemed focused mostly on wage and hour issues rather than on broader class certification issues, which may signal that their decision is unlikely to restrict class actions more generally. Other decisions in recent years have limited plaintiffs’ ability to use class actions—including Wal-Mart Stores Inc. v. Dukes in 2011 and Comcast v. Behrend in 2013. The Court has heard oral argument in two other class action cases so far this term.

The National Employment Law Project, AARP, Interfaith Worker Justice, and National Employment Lawyers Association filed an amicus brief in support of the workers. They commented on the case’s implications, noting that “the need for efficient collective wage and hour actions becomes even more important in the face of the overwhelming and persistent wage theft that continues to plague worksites around the country. In too many low-wage workplaces (like the meat processing plant in this case) employees work off the clock, their employers are rewarded for a failure to keep time records, and the workers fear proceeding individually to seek their proper pay.”

“If the court rewards Tyson in this instance for bad behavior, it will see a lot more bad behavior,” Michelman said.