
At one point, Tyson attempted to remedy the issue, by increasing the amount of time added to employee timesheets. Prior to 2010, the plaintiffs argued, they were only paid for four to seven “K-Code” minutes per shift. After a change in 2010, employees were paid for 20 to 22 “K-Code” minutes per shift.
Employees were awarded $2.9 million in unpaid wages by a lower court. Tyson appealed, arguing that the district court should not have certified the lawsuit as a class action because employees did not share enough common traits. Employees, Tyson argued, did not all have the same donning and doffing time - their time could vary from 30 seconds to 10 minutes - and some had none at all.
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“Finally, it bears emphasis that this problem appears to be one of petitioner’s own making,” Justice Kennedy wrote. “Respondents proposed bifurcating between the liability and damages phases of this proceeding for the precise reason that it might be difficult to remove uninjured individuals from the class after an award is rendered. It was petitioner who argued against that option and now seeks to profit from the difficulty it caused.”
The lawsuit is Tyson Foods v. Bouaphakeo et al, in the Supreme Court of the United States, case number 14-1146.