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Tyson Loses Donning and Doffing Appeal

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Denver, COIn an unpaid wages lawsuit that alleged employees of Tyson Foods were not properly paid for time spent donning and doffing protective clothes, Tyson has had its appeal of an award rejected. Plaintiffs were awarded $4 million in their lawsuit, in which they alleged time spent putting on and taking off protective gear equaled off-the-clock work.

Employees from a Tyson job site in Kansas filed the class action in 2006, alleging violations of the Fair Labor Standards Act. They claimed that time spent putting on and taking off protective gear, including shin guards, mesh aprons and plexiglass arm guards, should have been paid time.

The lawsuit argued that plaintiffs were paid through two systems. The first system was called “gang time” and compensated employees for time spent working on production lines. The second system was called “K-Code” time, which compensated employees for time spent on pre- and post-shift activities. The amount of time compensated under “K-Code” time was revised, with the most recent revision in 2010 allowing for 20-22 minutes of “K-Code” time per shift for all hourly production workers. Prior to that, employees were paid for 4-7 “K-Code” minutes per shift.

Plaintiffs filed the lawsuit alleging that the “K-Code” time did not adequately compensate them for time spent in pre- and post-shift work activities prior to 2010. According to Tyson’s internal study, as cited by the appeals judges, there were approximately 29 minutes per shift that employees were not paid for, based on the number of hours employees were paid for compared to their “clock in” and “clock out” times. Of that, plaintiffs and experts testified that approximately 21 minutes were spent in pre- and post-shift activities, significantly more than the 4-7 minutes they were paid for.

The appeals judges noted that Tyson’s increase in 2010 to up to 22 minutes of “K-Code” minutes per shift without a change in job responsibilities indicated that the company had previously underestimated the amount of time it took to prepare for a shift.

According to Courthouse News Service (8/21/14), a jury awarded $500,000 in damages, while a trial court awarded more than $3.3 million in attorney’s fees.

Tyson appealed the award, arguing that the $3.3 million was excessive. But judges in the appeals court disagreed with Tyson’s arguments and upheld the total award. In their decision, the judges noted that the plaintiffs presented “sufficient evidence of undercompensation,” and that the court acted within its discretion in awarding the fees.

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