Donning and doffing cases have been a thorn in the side of the meat packing industry for decades.  In such cases employees claimed that they should be compensated for the time spent putting on and taking off safety clothing and equipment prior to commencing work.  Following a 2005 Supreme Court decision, employees expanded their claims to include the time spent walking to their job station after donning safety clothing and equipment and prior to doffing the clothing and equipment. 

      Numerous lawsuits have been filed across the country by union and non-union employees.  Union employees had a higher hurdle with the FLSA and specifically Section 3(o).  That statutory provision excludes from time worked the “time spent in clothes changing at the beginning or end of each workday” where such exclusion involved a custom or practice under a collective bargaining agreement.  While DOL has vacillated in its interpretation of Section 3(o), the emerging judicial view seems to be that “clothes” includes safety equipment unique to employees using knives and hooks as well as standard hard hats, safety glasses, frocks or coveralls and similar routine items..   

      Tyson Foods battled both union and non-union employees in the red meat and poultry industries for years in their attempt to garner monies allegedly unlawfully not paid for donning, doffing and walk time.  Several years ago, the DOL filed suit against Tyson on behalf of the non-union workers at the company’s Blountsville, Alabama poultry processing plant.  DOL claimed that the employees were entitled to be paid for donning, doffing of their clothing and equipment and the walk time to their job station. 

      On June 3, 2010, Tyson announced that it had reached agreement with the DOL regarding the employees at the Blountsville plant.  Additionally, the agreement would be expanded to cover more than 30 poultry and prepared food plants of Tyson.  The settlement agreement does not apply to plants where employees are represented by a labor organization.  After years of litigation, Tyson elected to “resolve the case and modify [their] pay practices for certain jobs to avoid the continued expense and disruption of further litigation.” 

      The highlights of the settlement are:

      Tyson will modify its timekeeping practices over the next two and one-half years;

  1. Tyson will provide 8-12 minutes additional pay per shift to certain classifications of employees on an interim basis;
  2. By December 2012, Tyson must implement permanent modifications whereby employees will be paid from the time they clock-in before donning safety clothing and equipment until the time they clock-out after doffing their safety clothing and equipment;
  3. Union represented employees will have 60 days to “opt-in” the post 2012 agreement.

      While a number of meat and poultry companies have settled donning and doffing lawsuits, the Tyson settlement covers a substantially greater number of plants and employees.  Will this settlement set a standard for the poultry industry?  And will it gain traction in the meat packing industry? 

      Although the Tyson settlement applies to employees in the poultry processing industry, employees in other industries, not only the meat packing industry, who have also commenced litigation seeking compensation for donning and doffing will certainly view the settlement as a an incentive to continue to press their demands.  Finally, the settlement demonstrates the zeal with which DOL will pursue employers for claimed violations of even unclear regulations.  Solicitor of DOL, Patricia Smith has cited the Tyson agreement as an example of the type settlement DOL will be seeking.  According to Smith, “…if we find a violation at one facility, it should be corrected at all the company’s facilities.”   

 By W. Bernie Siebert, Sherman & Howard, Denver, Colorado


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