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Class Certified In Donning, Doffing Suit V. Tyson

Employment Law 360 - Ben James

A federal judge in Kansas has granted collective and class action certification to current and former beef processing plant employees who are suing Tyson Foods Inc. and Tyson Fresh Meats Inc. for allegedly failing to pay them for necessary activities such as donning and doffing protective gear and clothing.

Judge John W. Lungstrom of the U.S. District Court for the District of Kansas signed off on a memorandum and order Thursday, granting the plaintiffs' bid for conditional collective action certification on their Fair Labor Standards Act claims, and class action certification on their claims made under state law.  The lawsuit centers on Tyson beef-processing facilities in Holcomb and Emporia, Kan. The Holcomb plant employs about 2,500 hourly production workers and the Emporia plant used to employ about 2,000 hourly production workers, though Tyson stopped slaughter operations at the Emporia plant in February 2008, so the facility now employs about 800 people.

Most of those hourly workers are paid on a gang time (also called average time) basis, meaning they are only paid for time when the production line is moving.  The class definitions in the case have evolved since they were originally proposed by the plaintiffs.

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"Plaintiffs allege that the 'gang time' method of pay, as applied to them, fails to capture all compensable time and that Tyson’s failure to compensate them for all compensable activities is unlawful. Nothing more is required at this stage," Judge Lungstrom wrote, referring to conditional certification under the FLSA.

With respect to the FLSA claims, the court granted conditional certification to a class consisting of current and former hourly employees of the defendants who worked at the Holcomb or Emporia facilities in the last three years (plus applicable tolling) and who worked more than 40 hours in one or more workweeks (including time spent performing off-the-clock activities such as donning and doffing) and who were paid on a gang time basis and/or paid for the donning and doffing activities on an average time basis during one or more of those workweeks.  The FLSA class definition initially pitched by the defendants was a bit different, and would have covered current and former hourly workers at Holcomb or Emporia in the past three years who were paid on a gang time basis or paid for their donning and doffing activities on an average time basis.

The state law class originally proposed by the plaintiffs went back five years, while the class definition approved by Judge Lungstrom stretched back for three years and also included language referring to off-the-clock activities.

Separately, Tyson is also facing multi-district litigation in Georgia, over wage-and-hour practices at poultry plants.

Judge Lungstrom tapped Stueve Siegel Hanson LLP and Outten & Golden LLP as joint class counsel.

A Tyson spokesman could not be immediately reached for comment on Friday.

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The case is Garcia, et al., v. Tyson Foods Inc., et al., case number 06-2198, in the U.S. District Court for the District of Kansas.