Sharp et al v. Tyson Foods Inc

Filing 217

ORDER denying 123 and 124 Motions for Partial Summary Judgment. Signed by Judge John A Jarvey on 8/4/2011. (Cavanagh, Maura)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

PEG BOUAPHAKEO, et al.,
individually and on behalf of others
similarly situated,

No. 5:07-cv-04009-JAJ

Plaintiffs,
vs.
ORDER
TYSON FOODS, INC.,
Defendant.

This matter comes before the court pursuant to plaintiffs’ July 1, 2010 motion for
partial summary judgment [dkt. 124]. Defendant resisted plaintiffs’ motion on July 26,
2010 [dkt. 135]. Plaintiffs filed their reply brief on August 5, 2010 [dkt. 137].
Also pending is defendant’s July 1, 2010 motion for partial summary judgment on
plaintiffs’ claim for activities performed during the meal period [dkt. 123]. Plaintiffs
resisted defendant’s motion for partial summary judgment on July 26, 2010 [dkt. 134].
Defendant filed a reply brief on August 5, 2010 [dkt. 136]. Defendant filed notices of
supplemental authority in support of its motion for summary judgment on September 3,
2010 [dkt. 140] and February 7, 2011 [dkt. 188].
The undersigned heard oral arguments on the pending motions for summary
judgment (as well as the pending motions in limine) on February 14, 2011. As set forth
below, plaintiffs’ motion for partial summary judgment is denied.
for partial summary judgment is denied.

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Defendant’s motion

I. SUMMARY JUDGMENT - THE STANDARD
A motion for summary judgment may be granted only if, after examining all of the
evidence in the light most favorable to the nonmoving party, the court finds that no
genuine issues of material fact exist and that the moving party is entitled to judgment as
a matter of law. Kegel v. Runnels, 793 F.2d 924, 926 (8th Cir. 1986). Once the movant
has properly supported its motion, the nonmovant “may not rest upon the mere allegations
or denials of [its] pleading, but . . . must set forth specific facts showing that there is a
genuine issue for trial.” Fed. R. Civ. P. 56(e). “To preclude the entry of summary
judgment, the nonmovant must show that, on an element essential to [its] case and on
which it will bear the burden of proof at trial, there are genuine issues of material fact.”
Noll v. Petrovsky, 828 F.2d 461, 462 (8th Cir. 1987) (citing Celotex Corp. v. Catrett,
477 U.S. 317 (1986)). Although “direct proof is not required to create a jury question,
. . . to avoid summary judgment, ‘the facts and circumstances relied upon must attain the
dignity of substantial evidence and must not be such as merely to create a suspicion.’”
Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985) (quoting Impro Prod., Inc. v.
Herrick, 715 F.2d 1267, 1272 (8th Cir. 1983)).
The nonmoving party is entitled to all reasonable inferences that can be drawn from
the evidence without resort to speculation. Sprenger v. Fed. Home Loan Bank of Des
Moines, 253 F.3d 1106, 1110 (8th Cir. 2001). The mere existence of a scintilla of
evidence in support of the plaintiff’s position will be insufficient; there must be evidence
on which the jury could reasonably find for the plaintiff. Id.
II. STATEMENT OF MATERIAL FACTS

Defendant’s Storm Lake, Iowa facility is a hog slaughter and processing facility that
employs approximately 1,500 hourly production workers.

The main production

departments or “floors” at the Storm Lake facility are the kill floor, the cut floor, and the
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conversion (“re-trim”) floor. These floors form the large majority of the hourly workforce
and total approximately 1,300 hourly workers. Each of these floors typically run two
shifts daily. Both shifts of the kill floor total approximately 380 to 400 hourly workers.
Both shifts of the cut floor total approximately 440 to 460 hourly workers. Both shifts of
the conversion floor total approximately 440 to 450 hourly workers.
The kill floor slaughters the hog, removes the internal organs, sends the head, feet
and internal organs to the evisceration room, and sends the carcass to the cooler for cold
storage. The carcass consists of the two “sides” of the hog which contain edible meat.
The cut department breaks the chilled carcass down into its “primal pieces” which are
smaller parts such as the front shoulder, loins, bellies, hind quarters and hams. Some
items are packed for shipment to customers, and others are sent to the conversion
department for further processing. The retrim or conversion floor involves the further
processing of hams and loins and additional trimming of those products.
All Tyson production workers at the Storm Lake plant wear at least some items of
personal protective equipment (“PPE”). All Tyson Storm Lake production workers are
required to wear hard hats, ear plugs, boots and some type of gloves. Tyson Storm Lake
production workers wear and use some combination of the following items of PPE and
tools/gear: frocks, hard hats, ear plugs, hair nets, hard plastic arm guards, mesh aprons,
mesh sleeves or Kevlar sleeves, scabbards, cotton gloves, rubber gloves, cut-resistant
(Kevlar) gloves, and mesh gloves. Knife users are also issued knives and a “steel” by the
company, which is a tool used to keep a sharp edge on a knife. Not all hourly production
employees, however, wear mesh aprons or mesh gloves and whether knife-using
employees use a plastic arm guard, Kevlar sleeves, or mesh sleeves depends on the
position. Further, cotton gloves are optional for production employees and not all
employees wear rubber gloves.
Employees’ protective clothing and PPE (mesh sleeves only) are laundered by
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Tyson after each shift and put in a laundry bag clean and hung in the lockers of the
production employees. Items that are not laundered are kept in the employees’ lockers
between shifts, e.g., plastic arm guards, mesh aprons, knives, scabbards, hard hats, ear
plugs, and possibly mesh sleeves (if not laundered). With the exception of hard hats and
boots, employees are not permitted to take items of PPE home. Production workers who
use knives are issued knives, scabbards, and steels by the company.
Tyson Storm Lake hourly production workers must have all required and cleaned
PPE on before the first piece of meat product reaches their work station. Employees are
not permitted to perform work on the production line without wearing all required PPE and
they are disciplined if they are not wearing their required PPE. Tyson pays its Storm Lake
hourly production workers on the kill, cut, and conversion floors, in part, on a “gang
time” basis, assuming that they do not punch in after the start of “gang time” for that line.
“Gang time” is the time that the processing lines are moving and during which production
workers are physically at the assembly line while the lines are moving and producing
product. In and of itself, “gang time” does not record time that production workers spend
donning, doffing, and cleaning themselves and their PPE before and after “gang time” and
at unpaid meal breaks.
In addition to “gang time” Tyson currently pays its hourly production workers
“extra” minutes per day to compensate them for donning, doffing and washing their PPE.
Prior to February 4, 2007, Tyson paid its production workers four additional minutes per
day for donning and doffing their PPE if they worked in a production department such as
kill, cut or retrim/conversion.

The number of additional minutes paid was jointly

determined by IBP (Tyson’s predecessor) and the United States Department of Labor for
pre-shift and post-shift donning, doffing and cleaning of “unique” PPE items, and the postshift walk from the work station to the wash basin. The payment of “extra” minutes
beyond the “gang time” for donning and doffing activities is referred to as “K Code” time.
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Commencing on February 4, 2007, the Storm Lake facility changed the “K Code” time
to pay workers who must wear PPE to between four and eight minutes per day, the exact
number depending on the employee’s job position.
As of October 2008, the wage rates at the Storm Lake facility for hourly production
employees ranged from a starting wage of $11 per hour to a maximum of $15.50 per hour.
Employee William Sager roughly estimated that the average hours per week for 2008/2009
in the kill, cut and retrim floors was up to 48 hours, although some weeks the employees
only worked 40 hours.
During breaks, employees are required to remove all knives, scabbards, and arm
guards. Before using the rest room, employees must remove their sanitary and protective
clothing except for the following items: white shirt and pants, hair net, hard hat, earplugs,
and boots (whether personally provided or company provided).
As of October 2009, there were eight to ten time clocks at the Storm Lake facility,
most of which were located at the entrances to production areas. One time clock was
located in the hallway by the wash area leading into the cut floor. Although the time
clocks record the time that hourly workers punch the clock to the minute, Tyson uses the
clocks only for recording attendance, unless an employee arrives after the start of “gang
time” for their line. In that case, time clocks are also used for compensation purposes.
Otherwise, Tyson does not pay its hourly production employees based on the punchin/punch-out times, but rather pays them on “gang time” plus the additional minutes as
described above.
The typical hourly production employee at the Storm Lake facility is not exposed
to toxic or caustic substances during the workday. Employees in the kill area are working
with recently slaughtered hogs, while employees in the cut and retrim areas are working
with chilled pieces of meat, much like a butcher would. Hourly production workers
typically are not exposed to disease-causing agents during the workday.
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The frock worn by production employees at defendant’s Goodlettsville, Tennessee
case-ready facility for the past several years is different from the frock worn by cut and
retrim employees at the Storm Lake facility; the Goodlettsville frock has elasticized wrist
bands, while the frock used at the Storm Lake facility does not. The frock worn by cut
and retrim employees at the Storm Lake facility resembles a lab coat, with wide openings
at the wrist. The white shirt and pants worn by kill floor employees is a fabric uniform
like the uniform worn by many professions.
The only sanitary and protective clothing items required to be worn by all
employees on the kill floor are a white shirt and pants, hairnet, hard hat, earplugs, and
appropriate boots. The only sanitary and protective clothing items required to be worn by
all employees on the cut and retrim floors are a frock, hairnet, hard hat, and earplugs.
Rubber gloves are not required for all employees.
The standard sanitary and protective clothing items worn by production employees
at the Storm Lake facility, such as the frock, white shirt and pants, hairnet and beard net,
safety glasses, earplugs, hard hat, and boots, have remained basically the same during the
past 25 years. Hourly production employees may wear their hard hat and rubber or steeltoed boots, if they wear them, to and from the plant each workday. Items such as a plastic
apron, plastic sleeves, polar sleeves, cotton gloves, rubber or steel-toed boots, safety
glasses, rain coat and pants are optional for at least some hourly production employees.
Cotton gloves are provided to and used by employees for their comfort. Rubber gloves
help employees keep their hands clean and warm. Some employees choose to wear a
rubber apron to avoid getting wet or for appearance purposes.
Plaintiffs’ expert, Dr. Kenneth Mericle, performed a time-study at the Storm Lake
plant on April 23-24, 2009, and noted that different employees wear different combinations
of clothing, both within the same area of the plant and when contrasting the different areas.
Tyson, not OSHA, sets the rules at the Storm Lake facility regarding which safety items
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are required for each position pursuant to general OSHA guidelines.
Thirteen plaintiffs have testified that wearing sanitary and protective clothing and
equipment benefits them, including by keeping them clean and safe. Plaintiffs’ expert
agreed that employees have different routines for pre-shift and post-shift donning and
doffing. Some employees clock in before they go to the locker room and begin donning
pre-shift, while others clock in after they have performed some donning and left the locker
rooms. Employees differ in the first item donned and order of items donned. For
example, some may don their boots first while others may don a hairnet first. Others don
their frock before their hairnet. Some employees spend time in the cafeteria after clocking
in pre-shift. Some employees spend time in the cafeteria waiting, or drinking coffee after
donning some items pre-shift, but before clocking in. Some employees don some items such as earplugs, apron, rubber gloves, and cotton gloves - in locations other than the
locker room, including in the restroom or on the production floor.
Plaintiffs’ expert admitted that the class members’ donning and doffing activities
occurred in various areas throughout the plant. Some employees would don a particular
item in the locker room, while other employees would don the same item in their
production department. Some employees don items such as the frock and an apron in the
cafeteria. Plaintiffs’ expert observed that employees don and doff while walking in the
hallways.
An employee’s pre-shift routine may vary day to day. Some days they may stop to
talk to co-workers in the locker room, while other days they may not. Plaintiffs’ expert
observed that employees socialize in between their donning and doffing activities, and his
time-study calculations include that socializing time. One of the plaintiffs testified that the
time spent donning pre-shift by an individual employee may differ from day to day.
Employees do their activities at substantially different times of the day, even for the
same area and shift. For example, Plaintiffs’ expert, Dr. Mericle, recorded one retrim
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employee on April 23, 2009, who started donning pre-shift at their locker at 5:42 a.m.
He recorded another retrim employee who did not start donning pre-shift at locker that day
until 6:14 a.m., 31 minutes later. On the kill floor, Dr. Mericle recorded one employee
start donning pre-shift at locker that day at 6:52 a.m. He recorded another kill floor
employee who did not start donning pre-shift at their locker that day until 7:27 a.m., 35
minutes later. However, the next day, April 24, 2009, Dr. Mericle recorded a different
range of starting times for the same activities. For example, the earliest that he recorded
a retrim employee don pre-shift at locker the second day was 5:38 a.m., four minutes
earlier than the prior day. And the latest that he recorded a retrim employee don pre-shift
at their locker that second day was 5:49 a.m., only 11 minutes later than the first employee
(compared to a spread of 31 minutes the previous day).
Plaintiffs’ expert observed that employees changed clothes at different speeds.
Some of the difference is attributable to differences in the number of items they donned
and doffed, while some of it is attributable to employees’ physical capabilities or choices.
Some employees clock out post-shift before going to the locker room, while
employees who keep their ID badge in their coat or purse in their locker may clock out
after going to the locker room at the end of their shift. An employee may choose to clock
out post-shift before going to the locker room on some days, but not others. An employee
may use different time clocks to clock out on different days. An employee may stop to
talk to co-workers post-shift before clocking out.
Plaintiffs’ expert confirmed that some employees are capable of doing the donning
and doffing activities at issue in mere seconds. For example, Plaintiffs Balderas, Ernst,
and Henly confirmed that they can don various items such as boots, frock, earplugs,
rubber gloves, cotton (nylon) gloves, safety glasses, and plastic apron in seconds. Plaintiff
Henley confirmed that doffing and disposing of items such as the frock and rubber gloves
takes seconds. Plaintiff Banda testified that the time spent donning pre-shift differs from
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employee to employee.
Plaintiffs’ expert likewise concluded that there is substantial variation in the time
that employees spend donning and doffing. His report contains 744 measurements,
virtually all of which reflect different amounts of time. Employees even take substantially
different amounts of time doing the same activities. For example, at Table 1 of Dr.
Mericle’s expert report (sequences 6 and 7), he measured two different kill floor
employees doing essentially the same activity as he defined it (donning equipment pre-shift
at their locker). One of them took over four-and-a-half minutes to do it, and the other took
approximately one-half minute to do it.
In 1988 the United States Department of Labor filed a civil complaint in the United
States District Court of the District of Kansas seeking back pay for employees at IBP Inc.’s
non-union facilities, including the Storm Lake facility, for the time spent on the types of
pre-and post-shift activities at issue in this litigation. On April 13, 1998, IBP began paying
most employees at its non-union facilities, including all knife users as well as other
employees in any department that contained a knife-user, an additional four minutes per
day for the activities to be held to be compensable by the District Court in Kansas. Since
these events, the Department of Labor has not initiated any further investigation or
litigation against IBP (now Tyson) concerning how the company compensates hourly
production employees in its beef and pork processing facilities, or communicated directly
with the company in any way suggesting that these facilities are not in compliance with the
Fair Labor Standards Act with respect to how hourly production employees are paid.
Since Tyson Foods acquired IBP in 2001, the merged company has been continuously
represented by its legal department and outside counsel on this issue and has received
advice from them regarding the compensability of these activities.
On February 4, 2007, defendant added to its calculation of the reasonable pre and
post-shift walking time at the Storm Lake facility to the amount of time employees in
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various job positions were determined in the 1998 time studies to spend performing the
various pre and post-shift activities previously found to be compensable. Unlike the four
minute K code that has been paid since 1998, the new K code was paid only to knifewielding employees. This resulted in hourly production employees at the Storm Lake
facility receiving additional paid time ranging from zero to eight minutes per shift (and
knife-users receiving four to eight minutes) depending on their position.
Prior to June 28, 2010, hourly production workers at the Storm Lake facility were
given two breaks during a typical eight hour shift. The first break was a paid 15 minute
break, and the second was an entirely unpaid 30 minute break. As of June 28, 2010, all
hourly production employees have received at least 20 paid minutes each shift for activities
they perform outside of production time, both before and after each shift and during
breaks, including but not limited to any time spent taking off, putting back on, or washing
certain protective clothing and equipment and walking to and from the production line.
This extra 20 minutes of paid time provides all hourly production employees five minutes
of paid time for certain pre-shift activities, five minutes of paid time for certain post-shift
activities, and five minutes of paid time for certain activities performed during the first two
breaks during a shift. In other words, the 15 minute break was lengthened to 25 minutes,
with 20 minutes of the break being unpaid and five minutes being paid time. The 30
minute break was also lengthened to 35 minutes, with 30 minutes of the break being unpaid
time and five minutes being paid time. In addition to the extra 20 minutes of paid time,
most hourly production employees also receive additional minutes of paid time for donning
and doffing-related activities. This additional paid time ranges up to three minutes per
shift. The number of additional minutes assigned is particular to each job code, depending
on the protective clothing required for that position.

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III. DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Defendant argues that plaintiffs’ claim seeking unpaid wages for donning, doffing
and washing activities performed during the meal period should be dismissed, following
the reasoning by the United States Court of Appeals for the Fourth Circuit in Sepulveda
v. Allen Family Foods, Inc., 591 F.3d 209 (4th Cir. 2009). According to the defendant,
plaintiffs are not entitled to compensation for any part of the 30 minute meal period
because it is a bona fide meal period, wherein the plaintiffs’ time is not spent
predominantly for the benefit of the employer. In other words, the defendant argues that,
because the 30 minute meal period as a whole was predominantly for the benefit of the
employees, the entire 30 minutes was non-compensable, despite the fact that the plaintiffs
spent a few minutes during that 30 minute period performing donning and doffing
activities. Alternatively, the defendant argues that plaintiffs’ donning, doffing and washing
activities during the meal period is non-compensable because it is de minimus.
Plaintiffs resist defendant’s motion for partial summary judgment, arguing that the
“continuous workday” rule, as reaffirmed by the United State Supreme Court in Alvarez
v. IBP, Inc., 546 U.S. 21 (2005), requires employers to pay an employee for all integral
and indispensable activities that occur between the first and last principal activities of the
employee’s workday, including the donning and doffing of required sanitary and safety
equipment performed during the unpaid meal period. Plaintiffs argue further that the de
minimus rule does not apply in this case as the activities at issue are regular, recurring
events that the employees perform each and every day.
Plaintiffs receive a 30 minute unpaid meal period every day. During this 30 minute
meal period, no hogs are placed on the production line, and plaintiffs who work on the line
are free to leave the production area when they finish working on the last piece of product
that passes their workstations. Plaintiffs have testified that during the 30 minute unpaid
meal period, they must take off certain items of clothing and PPE before leaving the
11

production floor and put those items back on when they return. Plaintiffs’ expert opined
that meal period doffing and donning activities for which plaintiffs seek compensation take
an average of 3.18 minutes in the “Fab” side of the plant and 3.36 minutes in the “Kill”
side of the plant. The calculation includes time by some plaintiffs for washing clothing and
equipment during the meal period. Plaintiffs stipulate that the remainder of the meal
period (i.e., other than the donning, doffing, and washing activities performed by plaintiffs
during the meal period) is predominately for their benefit.
At issue in Sepulveda was whether the activity of donning and doffing PPE
constituted “changing clothes” within the meaning of 29 U.S.C. § 203(o). Sepulveda, 591
F.3d at 211. Noting that, under the FLSA, employers and unions may agree through
collective bargaining to exclude “any time spent in changing clothes . . . at the beginning
or end of each workday” from the compensable work time, the court in Sepulveda found
that donning and doffing PPE does constitute “changing clothes” and therefore, the parties
may agree through collective bargaining to exclude such time. Id. at 211. In footnote 4
in the Sepulveda decision, the court addresses the plaintiffs’ claim for compensation,
stating:
Lastly, the employees seek compensation for the time they
spend during their lunch breaks donning and doffing a few
items, washing, and walking to and from the cafeteria. This
time is non-compensable, however, because it is part of a bona
fide meal period, see 29 C.F.R. § 785.19 (“Bona fide meal
periods are not worktime.”), and, in the alternative, de
minimus. See Anderson v. Mt. Clemens Pottery Co., 328 U.S.
680, 692, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946) (“When the
matter in issue concerns only a few seconds or minutes of
work beyond the scheduled working hours, such trifles may be
disregarded.”).
Id. at 211, n.4. It is upon this footnote that defendant bases its motion.
In 1961, a regulation issued by the Wage and Hour Division of the Department of
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Labor (“DOL”) defined a bona fide meal period as follows:
Bona fide meal periods are not worktime. Bona fide meal
periods do not include coffee breaks or time for snacks. These
are rest periods. The employee must be completely relieved
from duty for the purposes of eating regular meals. Ordinarily
30 minutes or more is long enough for a bona fide meal
period. A shorter period may be long enough under special
conditions. The employee is not relieved if he is required to
perform any duties, whether active or inactive, while eating.
29 C.F.R. § 785.19.
Rejecting the “completely relieved” standard set forth in the DOL’s definition of
a bona fide meal period, the United States Court of Appeals for the Eighth Circuit has
concluded that the “predominantly-for-the-benefit-of-the-employer standard provides the
appropriate test for determining the compensability of meal periods under the FLSA.”
Hensen v. Pulaski County Sheriff Dept., 6 F.3d 531, 534 (8th Cir. 1993).
We conclude that the Wage and Hour Division’s meal period
compensability standard lacks persuasive force.
The
regulation is inconsistent with the Supreme Court’s
longstanding interpretation of the Act and would mandate the
application of a rigid rule in the face of the Supreme Court’s
direction that courts take a practical approach based on the
unique facts of each case. Moreover, we note that the Wage
and Hour Division has not consistently followed the policy that
employers must compensate employees from meal times if they
are not completely relieved from duty.
Id. at 535 (citations omitted).
As the court interprets the plaintiffs’ claim, they are not disputing that they do, in
fact, receive a bona fide meal period. Instead, at contention is the length of the meal
period, i.e., plaintiffs claim they lose a little over three minutes of every 30 minute unpaid
meal period to doffing and donning PPE, which is compensable work.
The Supreme Court in Steiner v. Mitchell, 350 U.S. 247, 256 (1956) found that
13

activities, such as the donning and doffing of specialized protective gear, that are
performed either before or after the regular work shift, on or
off the production line, are compensable under the portal-toportal provisions of the Fair Labor Standards Act if those
activities are an integral and dispensable part of the principal
activities for which covered workmen are employed and are
not specifically excluded by Section 4(a)(1).
This court fails to see how this logic would not extend to the donning and doffing
activities performed by plaintiffs when their 30 minute unpaid meal period starts. Unlike
the plaintiffs in Henson, whose break began only when the officers reached their break
destination and were entitled to return to the station and change into civilian clothes on the
department’s time, the plaintiffs in the instant case have produced evidence that they lose
over three minutes of every 30 minute unpaid meal period to doffing and donning
activities. Moreover, the Fourth Circuit recently re-addressed the mid-shift donning and
doffing issue in Perez v. Mountaire Farms, Inc., expressing doubt whether the decision
in Sepulveda was consistent with prior circuit precedent.
We next address the issue whether the employees’ acts of
donning and doffing at their meal break are compensable as
“work” under the FLSA. As an initial matter, we disagree
with Mountaire’s argument that our holding in Roy v. County
of Lexington, 141 F.3d 533 (4th Cir. 1998), requires us to
focus our analysis on the unpaid meal break as a whole, rather
than on the time the employees spend donning and doffing
their protective gear. Our decision in Roy does not counsel
such a result.
In Roy, certain emergency medical service personnel requested
compensation for their entire meal break, because they were
required to be “on call” to respond to emergencies during the
entire break. 141 F.3d at 544. In conducting an analysis of
the entire meal break, this Court denied the claim for
compensation, concluding that the meal period, as a whole,
predominately benefitted the employees. Id. at 545.
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In the present case, however, the employees do not seek
compensation for their entire meal break. Rather, the
employees seek compensation only for the time periods in
which the acts of donning and doffing occur, activities that
they allege occur before and after their “bona fide meal
period.” Therefore, we are not confronted here with an issue
whether the entire meal period predominately benefits the
employer, but instead whether the time periods during which
these activities occur, and for which compensation is sought,
predominately benefit the employer. See id.
The district court found that the employees’ acts of donning
and doffing at the meal break benefit Mountaire by helping to
“limit [Mountainaire’s] products’ exposure to bacteria and
ensure that products are uncontaminated and clean.” Perez,
610 F. Supp.2d at 521. Although the district court
acknowledged that the employees also benefit from being able
to eat “without blood and other chicken product on their
persons,” the district court found that the benefit to Mountaire
outweighs the benefit to the employees. Id.
These factual findings are well-supported by the present record
and, therefore, should be applied in the resolution of this
appeal. See Universal Furniture, 618 F.3d at 427. If we were
writing on a clean slate, we would hold that based on the
district court’s factual findings, these activities are not part of
the “bona fide meal period” but are compensable as “work”
under the continuous workday rule. See Alvarez, 546 U.S. at
29; Roy, 141 F.3d at 545.
We are bound, however, by circuit precedent. In Sepulveda,
this court held, as a matter of law, that acts of donning and
doffing occurring before and after employees eat their meals
are non-compensable because these acts are part of the “bona
fide meal period.” 591 F.3d at 216. Alternatively, this Court
concluded that the time spent by employees conducting such
activities was non-compensable on the ground that the time
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was de minimus.
...
In resolving this issue as a matter of law, the Court in
Sepulveda appears to have departed from our holding in Roy,
which instructs that the issue whether employees are entitled
to receive compensation as a result of particular activities
performed incident to a meal break presents “a question of fact
to be resolved by appropriate findings of the trial court.” Roy,
141 F.3d at 545 (quoting Skidmore v. Swift, 323 U.S. 134,
136-37, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). In Skidmore, the
Supreme Court specifically advised against “lay[ing] down a
legal formula to resolve [FLSA] cases so varied in their facts.”
323 U.S. at 136. Thus, we conclude that the decision in Roy
requires the “predominant benefit” factual analysis that the
district court conducted in the present case.
Nevertheless, because the activities in Sepulveda involved meal
break donning and doffing at a poultry processing plant, and
the character of those activities cannot be distinguished
substantively from the activities at issue here, we are required
to follow this Court’s holding resolving the issue. See United
States v. Prince-Oyibo, 320 F.3d at 494, 501 (4th Cir. 2003).
Accordingly, we conclude that the employees are not entitled
to compensation for the time spent donning and doffing
protective gear incident to the meal period. Sepulveda, 591
F.3d at 216.
2011 WL 2207110 *10-11 (June 7, 2011), reh’g denied, July 5, 2011.
Defendant’s motion for summary judgment on this issue is denied.
The court further declines to find, as a matter of law, that the activities involved
were de minimus and, therefore, not compensable. While “[i]t is true that some periods
of time beyond normal working hours may be disregarded if it cannot, as a practical
administrative manner, be precisely recorded for payroll purposes,” the cases addressing
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the de minimus issue “uniformly observe that the ‘rule applies only where there are
uncertain and indefinite periods of time involved of a few seconds or minutes duration and
where failure to count such time is due to considerations justified by industrial realities.’”
Saunders v. John Morrell & Co., 1992 WL 531674 *1 (N.D. Iowa 1992) (quoting 29
C.F.R. § 785.47). In determining whether otherwise compensable time is de minimus,
the courts should consider (1) the practical administrative difficulty of recording the
additional time; (2) the aggregate amount of additional time; and (3) the regularity of the
additional work. Lindow v. United States, 738 F.2d 1057, 1064 (9th Cir. 1984).
The defendant argues that the plaintiffs have failed to identify any facts to support
their argument that the time at issue is administratively feasible to track. For purposes of
summary judgment, however, the court finds that there is a genuine issue of material fact
regarding the feasibility of tracking the time. This problem may easily be solved by
strategically placing time clocks near break rooms and/or locker rooms and actually using
them to record the time the plaintiffs work. The court’s review of the record does not
reveal evidence suggesting such an approach is administrative infeasible. With respect to
the second factor, whether the aggregate amount of potentially compensable work is
significant, i.e., several hundred employees per day at three-plus minutes per employee,
presents a fact question. Finally, the alleged additional work at issue occurs every day.
Granted, it may involve different combinations of PPE for various employees, but that
does not make the potential additional work any less regular. A genuine issue of material
fact exists whether plaintiffs’ doffing and donning of PPE before and after unpaid meal
periods constitutes compensable work and/or is de minimus. Defendant’s motion for
partial summary judgment on this issue is denied.

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IV. PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiffs seek partial summary judgment on several of defendant’s asserted
defenses. First, plaintiffs move for summary judgment on defendant’s defense that some
of the activities for which plaintiffs seek compensation are not compensable because the
donning or doffing of “standard” or non-unique safety equipment is not compensable.
Second, plaintiffs seek summary judgment on defendant’s “de minimis” defense. Finally,
plaintiffs move for summary judgment on defendant’s Portal-to-Portal Act defense under
29 U.S.C. § 254. Defendant had also claimed defenses of good faith pursuant to both 29
U.S.C. § 259 and § 260, and opposed the application of the three-year limitations period,
but has since withdrawn such defenses. The court will address each defense separately.
A. Donning/Doffing of Standard or “Non-Unique” Equipment
Plaintiffs argue that defendant should not, as a matter of law, be allowed to assert
the defense that the donning and doffing of standard or “non-unique” PPE is not
compensable. Plaintiffs argue that such activities are “integral” and “indispensable” to the
principal activity of meat processing and take place during the continuous workday.
Plaintiffs claim that, pursuant to the Supreme Court’s decision in Alvarez, coupled with
the DOL’s 2006 Advisory Memorandum, there is no longer a viable legal distinction
between “unique” and “non-unique” equipment in terms of determining the compensability
of donning and doffing such equipment. Rather, plaintiffs claim, it is undisputed that they
must obtain and don all of their PPE on the plant’s premises and doff and leave such
equipment at the plant on a daily basis, making it integral and indispensable, and therefore
compensable.
The defendant resists, arguing that there is a genuine issue of material fact as to
whether the donning and doffing of non-unique items and sanitary outer garments are
compensable, either because they are not “work” or because they are not principal
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activities. With respect to the required items at issue, defendants argue that a fact issue
exists as to whether the items are necessary or essential to perform meat-processing work,
or whether defendant or the plaintiffs receive the primary benefit from wearing any of the
items.
In reply the plaintiffs contend that the non-unique equipment at issue is all required
by defendant, thus making it integral and indispensable to meat processing workers’
principal work activities.
This issue was also addressed by the Fourth Circuit in Perez:
Under the Ninth Circuit’s definition in Alvarez, the donning
and doffing of protective gear at the beginning and the end of
a work shift are acts “integral and indispensable” to the
employer’s principal activity when the donning and doffing
are: 1) necessary to the principal work performed; and 2)
primarily benefit the employer. See Alvarez, 339 F.3d at 90203. An act is necessary to a principal activity if that act is
required by law, by company policy, or by the nature of the
work performed. Id. at 903 (citing 29 C.F.R. § 790.9(c) n.
65). Other circuit courts have used a similar definition of
integral and indispensable.” See Franklin, 619 F.3d at 620;
Bonilla v. Baker Concrete Constr., Inc., 487 F.3d 1340, 1344
(11th Cir. 2007).
Because we agree that the two-part definition employed by the
Ninth Circuit in Alvarez provides a consistent construction for
application of the Steiner test, we apply that two-part definition
to determine whether the employees’ acts of donning and
doffing at the beginning and the end of work shifts are
“integral and indispensable” to Mountaire’s principal
activities. In adopting this definition from Alvarez, we reject
Mountaire’s contention that this definition effectively will
undermine application of the Portal-to-Portal Act. The
requirements of this definition, that an act be necessary to the
principal work and primarily benefit the employer, ensure that
an employee will only be compensated for such acts that are
essential to the principal activity, rather than those that merely
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precede or follow in a temporal sense the performance of that
principal activity. Therefore, we now turn to consider the acts
of donning and doffing in the present case, which occur at the
beginning and the end of the employee’s work shifts.
As an initial matter, and contrary to Mountaire’s suggestion,
we decline to distinguish the employees’ protective gear as
either “specialized” or “generic.” This distinction was not
made in Steiner. The work clothes at issue in Steiner were
simply described as “old but clean work clothes,” and the
Supreme Court did not characterize the clothes as “special.”
See Steiner, 350 U.S. at 251. Thus, we hold that these terms
are not relevant to our “integral and indispensable” analysis,
and we do not classify the employees’ protective gear in this
manner.
Perez v. Mountaire Farms, Inc., 2011 WL 2207110 *7 (June 7, 2011).
This court finds the above reasoning to be sound.

However, as the court

understands defendant’s position, it wishes to argue that items such as work boots,
hairnets, and hard hats are not “integral” and “indispensable” to the principal activity of
meat processing. The court agrees with the defendant that a fact issue exists on this issue,
i.e., are such items “integral and dispensable” to perform meat-processing work? This
court’s research on this question reveals that the answer is far from uniform. Plaintiffs’
motion for summary judgment is denied.
B. De Minimis
As noted by the Supreme Court, “[s]plit-second absurdities are not justified by the
actualities of working conditions or by the policy of the [FLSA]. It is only when an
employee is required to give up a substantial measure of his time and effort that
compensable working time is involved.” Anderson v. Mt. Clemons Pottery, 328 U.S.
680, 692 (1946). Therefore, even if a plaintiff’s donning and doffing activities constitute
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work as indispensable to their principal activities, those activities may nonetheless be
excluded from FLSA coverage if the time spent on them is de minimus. As set forth
above, determining whether the time spent on an activity is de minimus requires a
consideration of the following factors: (1) the practical administrative difficulty of
recording the additional time; (2) the aggregate amount of additional time; and (3) the
regularity of the additional work. Lindow, 738 F.2d at 1062-63 (9th Cir. 1984).
Ultimately, the precise amount of time that can be considered de minimus is a
question for the trier of fact and there exists a genuine issue of material fact as to the
administrative difficulty involved in recording the time at issue, as well as the aggregate
amount of additional time. Summary judgment on this issue is inappropriate. Plaintiffs’
motion for summary judgment on this issue is denied.
C. Portal-to-Portal Act
Plaintiffs move for summary judgment on defendant’s Portal-to-Portal Act defense,
arguing that the Supreme Court has already ruled in Alvarez that donning and doffing of
required PPE is integral and indispensable to the principal activity of meat processing and
is therefore itself a principal activity. Plaintiffs claim that it is undisputed that Tyson
production workers at Storm Lake must obtain and don all of their PPE on site at the plant
prior to entering the production floor and performing any meat processing activities.
Accordingly, plaintiffs contend, the donning and doffing of PPE is a “principal activity”
in a pork processing job and, therefore, time spent on these activities is compensable
pursuant to the FLSA.
The Portal-to-Portal Act of 1947 amended the Fair Labor Standards Act (“FLSA”)
to exclude the following activities from “working” time:
(1) walking, riding, or traveling to and from the actual place
of performance of the principal activity or activities which
such employee is employed to perform, and
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(2) activities which are preliminary to or postliminary to said
principal activity or activities,
which occur prior to the time or any particular workday at
which such employee commences, or subsequent to the time
any particular workday at which he ceases, such principal
activity or activities.
29 U.S.C. § 254(a).
Preliminary and postliminary activities are compensable, however, if they are an
“integral and indispensable part of the [employee’s] principal activities.” Steiner v.
Mitchell , 350 U.S. 247, 256 (1956). For purposes of the Portal-to-Portal Act, an
“integral and indispensable” activity is itself a principal activity. IBP, Inc. v. Alvarez,
546 U.S. 21, 37 (2005).
The court finds that a genuine issue of material fact exists as to whether donning and
doffing the PPE at issue in this case is “integral and indispensable” to the principal work
of pork processing, especially if doing do is required by the defendant’s internal rules as
well as applicable law. Likewise, it is a jury question as to whether the donning and
doffing of the PPE is done “necessary and primarily” for the benefit of the defendant. The
court finds somewhat specious defendant’s contention that the donning and doffing of the
PPE primarily benefits the plaintiffs by keeping their clothes clean. Such argument
completely ignores the benefit to defendant. As two other district courts considering this
issue have noted:
The fact is that frocks enable the defendants to maintain the
cleanliness of their facilities and prevent their product from
becoming contaminated. This benefit is enormous when one
considers the damage that would result to the defendants if
they were to sell a contaminated food product. This minor
benefit to the employees of keeping their clothes clean pales by
comparison. As such, there is no question that, as a matter of
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law, it is the defendants who reap not only some benefit from
the donning and doffing of the frocks, but the primary benefit
of doing so.
Jordan et al. v. IBP, Inc., 542 F. Supp.2d 790, 807 (M.D. Tenn. 2008).
Defendants are likewise benefitted by the employees’ donning
and doffing PPE. First, defendants are able to meet the
sanitary and safety requirements of federal law. These
requirements include USDA animal products safe handling
regulations and OSHA workplace safety regulations. Second,
defendants are able to process, manufacture, and sell sanitary
and uncontaminated chicken. Finally, Defendants mitigate
their liability regarding workplace hazards. These benefits are
important, especially in the context of public safety and
defendants’ potential exposure to civil liability (both as
commercial manufacturers and as employers). If defendants
do not require employees to wear PPE while they processed
chicken on the production line, then they face substantial fines
and penalties for violating federal law. In fact, defendants
“could not continue to operate its chicken-processing business
if it failed to maintain a certain level of cleanliness in
compliance with USDA regulations, or if it failed to follow
OSHA regulations relating to employee safety.” Fox v. Tyson
Foods, Inc., 2002 WL 32987224 *9 (N.D. Ala.). In recent
months, many manufacturers and sellers of meat products have
recalled their products due to possible salmonella, listeria or
E. coli contamination, costing manufacturers and sellers
millions of dollars. Further, the cost of defending and
satisfying a judgment in a civil case for placing contaminated
meat products in commerce is potentially financially
devastating to a manufacturer or seller. See generally Jean C.
Buzby, Paul D. Frenzen, and Barbara Rasco, Product Liability
and Microbial Foodborne Illness, Agricultural Economic
Report No. AER799, 13-23 (April 2001).
Perez v. Mountaire Farms, Inc., 601 F. Supp.2d 670, 680-81 (D. Md. 2009). On appeal,
the United States Court of Appeals for the Fourth Circuit affirmed this finding:
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Mountaire does not dispute the district court’s finding that the
employees are required as a matter of federal law to wear
certain protective gear on the “production line. These legal
requirements are based on regulations concerning sanitation
promulgated by the United States Department of Agriculture,
and on safety regulations established by OSHA. See 29
C.F.R. § 1910.132(a); 9 C.F.R. § 416.5.
Perez, 2011 WL 2207110 at *8.
The Fourth Circuit then discussed the fact that company policy and/or federal law
required employees to wear hard hats (“bump caps”), hair and beard nets, specific types
of ear plugs, clean smocks and aprons, and sanitize their PPE. Id. The Fourth Circuit
concluded that these activities were necessary to chicken processing, but noted that it must
also consider whether the record supported a conclusion that the donning and doffing
primarily benefitted Mountaire. Id. On this issue the Fourth Circuit concluded that the
employees’ acts of donning and doffing at the beginning and end of their work shifts
primarily benefit Mountaire and, therefore, are “integral and indispensable” to chicken
processing. Id. at *8-9.
Plaintiffs’ motion for summary judgment on this issue is denied.
V. CONCLUSION
As set forth above, defendant’s motion for partial summary judgment [dkt. 123] is
DENIED. Plaintiffs’ motion for partial summary judgment [dkt. 124] is DENIED.
IT IS SO ORDERED.
DATED this 4th day of August, 2011.

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