Acosta et al v. Tyson Foods
MEMORANDUM AND ORDER denying 117 Defendant's Motion for Summary Judgment; granting in part and denying in part 119 Plaintiffs' Motion for Summary Judgment; granting 180 Plaintiffs' Motion for Leave to File Declaration; granting 186 Defendant's Motion for Leave to File Surreply Brief. Ordered by Judge Joseph F. Bataillon. (SMS)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MANUEL ACOSTA, on Behalf of Himself and
All Other Similarly Situated Individuals; LUIS
MONTOYA, on Behalf of Himself and All
Other Similarly Situated Individuals; and
MARTIN HINOJOSA, on Behalf of Himself
and All Other Similarly Situated Individuals;
MEMORANDUM AND ORDER
TYSON FOODS, INC.,
This matter is before the court on the parties’ cross-motions for summary
judgment, Filing No. 117 and Filing No. 119.1 This is a class action for unpaid wages
under the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201, and Nebraska
wage and hour laws. Plaintiffs, present and former employees of the defendant, allege
violations of the FLSA for donning and doffing sanitary and protective gear.
Defendant Tyson Foods, Inc. (“Tyson”) moves for partial summary judgment,
seeking dismissal of the plaintiffs’ state law claims and the plaintiffs’ claim for
compensation for donning, doffing, and washing at the beginning and end of their meal
Also pending is a motion for leave to file a declaration attesting to the accuracy of the plaintiffs’
exhibits filed in support of their motion for summary judgment, Filing No. 180, and a motion for leave to
file a surreply brief in opposition to the motion, Filing No. 186. The declaration addresses the defendant’s
authentication objections to the materials submitted in support of the plaintiffs’ motion for summary
judgment. The defendant opposes the motion, arguing that the plaintiffs’ proposed declaration does not
cure the objections. Filing No. 181. Although the defendant’s contention may have some technical merit,
the court notes that this is a trial to the court and the court will consider only properly authenticated
evidence and will give the evidence the weight it deserves. Tyson contends the declarant authenticating
the documents must be a witness and not counsel. However, most of Tyson’s objections are directed to
its own documents. The court finds the motion for leave to file the declaration should be granted and the
declaration will be deemed filed instanter. The motion for leave to file a surreply brief is addressed to the
authentication issues. The court has considered the surreply brief and it does not alter the court’s
conclusion. Accordingly, the motion for leave to file a surreply brief will also be granted and the brief will
be deemed filed.
period. The plaintiffs move for summary judgment on the issues of the compensability
of certain donning and doffing activities. The plaintiffs seek a ruling as a matter of law
that donning and doffing is “work” under the FLSA and that they are entitled to
compensation for pre- and post-shift donning and doffing of both unique and sanitary
equipment, as well as for the walking time associated therewith. It also seeks a ruling
precluding Tyson’s de minimis defense as a matter of law; a ruling that employees must
be paid for work they perform during unpaid meal periods; and ruling that employees
must be compensated for actual as opposed to “reasonable” time for donning and
doffing activities. They also contend there is no evidence to support Tyson’s good-faith
The following facts are gleaned from the parties’ respective statements of
See Filing No. 118, Defendant’s Brief in Support of Motion for
Summary Judgment at 3-33; Filing No. 120, Plaintiffs’ Brief at 1-20; Filing No. 153,
Plaintiffs’ Opposition to Defendant’s Motion for Partial Summary Judgment at 2-21;
Filing No. 157, Defendant’s Opposition to Plaintiffs’ Motion for [Partial] Summary
Judgment at 9-38; Filing No. 171, Plaintiffs’ Reply in Support of their Motion for
Summary Judgment; and Filing No. 175, Defendant’s Memorandum of Law in Further
Support of its Motion for Summary Judgment and in Response to Plaintiffs’ Opposition
As a threshold matter, the parties dispute whether the court is entitled to rely on the stipulations
the defendant made in Lopez v. Tyson, No. 8:06CV459, Filing No. 237, Pretrial Order at 1-8. That case
involved the same issues at another Tyson facility. The defendant objects to the plaintiffs’ statement of
undisputed facts as it relates to the stipulations in the prior case. The court is able to resolve the motions
without relying on the stipulations in the earlier case, so the defendant’s objections are overruled as moot.
The undisputed evidence establishes that defendant Tyson has been engaged in
interstate commerce or in the production of goods for interstate commerce throughout
the relevant time period. Tyson Fresh Meats, Inc., which is part of Tyson Foods, Inc.,
owns and operates a slaughter and processing facility in Madison, Nebraska.
facility employs approximately 950 hourly production employees. Production operations
include Kill, Cut, Converting, Load Out, Rendering, Maintenance and Training.
Most hourly production employees in Kill, Cut, and Converting are paid in part
through “gang time,” a system that ensures that each employee is paid for the length of
production, which is time from when the first piece of meat passes their work station
until the last piece passes their work station.
The meat that is processed at the
Madison facility is ultimately distributed to restaurant, food service, and grocery store
Undisputed evidence shows that workers are required to be at their work stations
on the production floor when the first piece of meat arrives at their workstation. Before
workers are permitted to work on the production floor each day, they are required by
Tyson to don certain sanitary and personal protective clothing. Among the items that
must be donned and doffed and worn by all production workers are a hard hat, a
hairnet, a beardnet (as necessary), and earplugs. Additional items of required personal
protective clothing are listed on the Job Safety Analysis.
For purposes of summary judgment in this case, defendant admits that team
members who worked in a department with job positions requiring the use of a knife are
also required to don and doff frocks or “whites” (which is a uniform consisting of a white
shirt and pants), hardhats, ear plugs, hairnets and/or beardnets and, in some jobs,
steel-toe boots. Employees are not required to don or doff items in any particular order
and employees can choose whether to wear mesh items under or over their frock.
Defendant admits that nearly all non-clerical hourly production team members are
required to wear a hardhat, ear plugs, and hair net and/or beard net (as necessary).
Depending on the particular job, they may also be required to wear steel-toe boots.
Most workers in Processing and Slaughter use knives. After their shift, some
workers deposit soiled laundry (such as frocks, whites, Kevlar gloves, Kevlar sleeves,
and cotton gloves) in a gondola on their way out of the plant. The laundry is then
washed and returned to each worker’s locker before the start of their next shift.
Defendant admits that it pays additional compensation, known as “K-Code,” to
employees who perform certain pre- and post-shift activities. Defendant admits that
prior to January 28, 2007, K-Code time was paid to team members who worked in a
department with job positions requiring the use of a knife for pre- and post-shift time
spent changing into and out of protective clothing. Defendant admits that beginning on
January 28, 2007, it began paying additional compensation to team members on
particular jobs requiring the use of certain types of equipment and clothing. Defendant
admits that at the Madison facility, all hourly workers in the Training, Kill, Cut,
Converting, Loin, and Ham departments currently receive additional pay known as KCode for certain activities.
For purposes of summary judgment in this case, defendant admits that workers
at the Madison facility during a typical 8-hour shift currently get a 25-minute break, five
minutes of which is paid and 20 minutes of which is unpaid, and a 35-minute meal
period, five minutes of which is paid and 30 minutes of which is unpaid.
February 1, 2010, the workers got a paid 15-minute break and an unpaid 30-minute
During the class period, the plaintiffs’ wage rates have ranged from $9.00 to
$16.55 per hour. From the beginning of the class period until January 28, 2007, the
defendant paid four minutes per day in addition to gang time to all plaintiffs who were
working in a department at the Madison plant in which knives were used.
defendant contends it intended these four minutes to compensate the employees for
certain donning, doffing, washing, walking, waiting, and related activities that knifewielding employees performed before and after the shift. The four minutes was
calculated based on a time study performed by IBP, Inc., Tyson’s predecessor. From
January 29, 2007, to February 1, 2010, Tyson paid knife-wielding plaintiffs working at
the Madison plant—based upon the amount of protective clothing they wore in the job
they performed—between four and seven minutes per day in addition to gang time.
Tyson intended these four to seven minutes to compensate employees for certain
donning, doffing, washing, walking, waiting, and related activities they performed before
and after the shift. The number of minutes was calculated based on the original time
study performed by IBP, Inc. in 1998, plus a walking time study performed by Tyson in
2006. Some class members, however, were not paid any minutes in addition to gang
time between January 29, 2007, and February 1, 2010, because they were non-knifewielding employees who wore minimal protective clothing in the jobs in which they were
working. Defendant further admits that beginning on January 28, 2007, it began paying
additional compensation to team members on particular jobs requiring the use of knives,
and no longer paid K-Code to team members not working in job codes requiring the use
Since February 1, 2010, Tyson has paid all plaintiffs working at the Madison plant
at least 20 minutes in addition to gang time.
Tyson intends these 20 minutes to
compensate employees for certain donning, doffing, washing, walking, waiting, and
related activities they performed before and after the shift and during each of their two
breaks (including the meal period that is at issue in this motion). Some employees are
also paid one to four additional minutes on top of the 20 minutes—based on the amount
of protective clothing they wear for their job—to compensate them for the additional time
it may take to perform these activities due to the amount of protective clothing they
All of these additional minutes paid in addition to gang time, as described above,
were coded separately in Tyson’s payroll under a “K-Code.” Thus, Tyson sometimes
refers to the minutes intended to pay employees for certain donning, doffing, washing,
walking, waiting, and related activities they performed before and after the shift (and
later, during breaks) as “K-Code time.”
This “K-Code time” was also listed as a
separate category of pay on each of the plaintiffs’ weekly pay checks. Early in the class
period, this K-Code time was designated on the pay checks as “clothes changing.”
Later, the designation changed to “pre/post shift.” Defendant admits that employees at
the Madison facility have swipe cards that they use in the time clock system to register
Tyson admits that, although USDA regulations do not mandate a mid-shift cleanup of the production floors at the Madison facility, the Madison plant uses hoses to wash
down food contact surfaces on the Kill floor during the meal period, but generally does
not do so on the Processing side (Cut and Converting). Typically, the only wash-down
that occurs on the Processing side during the meal period is the occasional hosing of
the floor, which also occurs routinely throughout the shift while the employees are
working on the line. It further admits that no employee in the Kill Department is required
to leave the production floor during the meal period and if an employee chooses not to
leave the floor, he or she is not required to don or doff any sanitary or protective items.
During the meal period, certain cleaning of the food contact surfaces takes place
on the Kill floor. This cleaning is performed by a third-party company with which Tyson
has a contract. Currently, no Tyson employees perform this cleaning during the meal
period, but at one time it was performed by two Tyson employees who held janitor
Tyson further admits that United States Department of Agriculture (“USDA”)
inspectors are stationed on the Kill floor and must be present to inspect certain portions
of the production process during the entire time that the line is running. The USDA
inspectors are entitled to take a 30-minute meal break under their collective bargaining
agreement with the government. Accordingly, Tyson must cease production on the Kill
floor for 30 minutes each day so that the on-site USDA inspectors can take their own
meal period. During the time the inspectors are away from the line and on their 30minute meal period, the USDA prohibits Tyson from running the production line. With
respect to the meal period, plaintiffs are seeking compensation only for the donning,
doffing, washing and related activities they claim to perform during the meal period.
Tyson admits that some employees are required to sanitize some equipment and
tools prior to the beginning of the shift, but not all employees and not all equipment and
Tyson admits that some Madison production workers wear and use some
combination of the following items: frocks, “whites” (Tyson issued pants and shirts),
hard hats, ear plugs, hairnets, hard plastic arm guards, mesh aprons, mesh sleeves or
Kevlar sleeves, scabbards, cotton gloves, rubber gloves, cut-resistant (Kevlar) gloves,
polar sleeves, polar gloves, steel, hook, chain, belly guard, safety glasses, and mesh
Tyson admits that its Pork Food Safety and Quality Assurance document (Filing
No. 122, Attachment 3, Plaintiffs’ Ex. 13) states, “Employee hand carried personal
equipment or utensils that directly contacts [sic] product will be cleaned and sanitized
before daily use,” and “Employee controlled, hand-carried equipment (gloves, arm
guards, steels, hooks, scissors, scabbards, etc.) is cleaned and sanitized prior to the
start of daily operations,” however, Tyson denies that all employees wash or sanitize
items prior to the start of daily operations.
The record shows that Tyson communicates and enforces these requirements to
its production-related employees in a number of company publications disseminated to
the employees such as “Good Manufacturing Practices” or “GMPs,” and “Standard
Sanitary Operation Procedures” or “SSOPs.”
Those documents communicate the
company’s “strict guidelines for food handling.” Tyson also uses “Basic Food Safety
Training” to communicate its food safety requirements and tells its employees that lack
of food safety could lead to unsafe foods, regulatory action, name brand damage and
lost consumer confidence. Tyson instructs employees that they “must always protect
the product” by “keeping the product clean, cold and moving.”
instructed about “proper equipment cleaning” and that they are not to “rush such tasks
when nearing breaks/end of shift.” Employees are instructed to not “wash equipment on
the floor or in the hand wash sinks” but use the “designated areas for equipment wash.”
Employees are also told they must “dip clean equipment in sanitizer tanks before and
after shift,” but denies that all employees actually do dip equipment in the sanitizer tank
before and after their shifts.
Tyson also admits that employees are specifically
instructed they must “wash hands routinely with soap” and “[d]efinitely after
contaminating, after smoking, and after restroom use.” Tyson also instructs employees
that hairnet/beardnet must be worn at all times when on the production floors. If an
employee by mistake contaminates the “product contact gloves” like touching a “green
grate, hoses, pallets, cough/sneeze in gloves, etc.” they are required to “wash and/or
replace gloves before touching any product.”
Tyson requires employees to store equipment in designated equipment storage
Employees are not allowed to wear personal protective equipment (aprons,
frocks, gloves, arm guards, etc.) outside the plant—including in the smoking lounge—
but boots may be worn to and from home and are not required to be left in an
employee’s locker. Tyson instructs its employees on what and how their equipment is
to be stored in their designated lockers between shifts to promote sanitary conditions to
avoid contamination. For example, employees are not allowed to bring food or drink in
the locker rooms, they can only store clean equipment, and they must properly hang
equipment and put their boots on their locker floor.
For purposes of summary judgment in this case, Tyson also admits that it
explains its food safety, GMP, SSOP policies to employees during orientation sessions.
Tyson performs locker checks to see that the equipment in the employee’s locker
compared to the employee’s equipment listed on his/her equipment card match up.
Tyson specifically tells its employees that lack of food safety could potentially lead to
unsafe foods, regulatory action, name brand damage and lost consumer confidence.
Tyson’s GMPs specifically note that the policies and guidelines were established so that
“every assurance” is provided of wholesomeness and food safety to Tyson’s customers.
Tyson admits its Employee Personal Equipment SSOP specifically requires that
“Quality Assurance Inspectors and/or Production Supervisors” monitor employees as
they enter the production floor to “verify that equipment is cleaned and sanitized prior to
the start of daily operations.” Production Supervisors are also required to monitor the
procedures and effectiveness of employee equipment cleaning procedures post-shift 3
times per week (per department). Tyson provides each employee a locker, a laundry
bag, a laundry pin and a combination padlock to store company issued equipment in
designated locker rooms. In orientation, employees are specifically trained on Tyson’s
The plaintiffs’ expert, Kenneth Mericle, performed a time study based on the
videotaping of employees selected by Mericle’s own team at the Madison plant on
November 30, 2011, and December 1, 2011. Plaintiffs’ damages expert, Dr. Liesl Fox,
has calculated damages for all of the class members based on their rate of pay and
overtime rate during each individual week. For purposes of his damages calculations,
Dr. Fox considered Dr. Mericle’s calculations. In addition, Dr. Fox has given Tyson full
credit for the above described K-Code minutes.
Defendant admits that the Secretary of Labor of the Department of Labor (“DOL”)
brought an action against IBP charging that it had violated the overtime and recordkeeping provisions of the FLSA in Reich v. IBP, Inc., 820 F. Supp. 1315, 1318 (D. Kan.
1993), aff’d 38 F.3d 1123 (10th Cir. 1994), reaff’d sub. nom., Metzler v. IBP, Inc., 127
F.3d 959, 962-963 (10th Cir. 1997) (“Reich”).
The record shows that following the
Supreme Court’s decision in Alvarez, the Department of Labor issued a Wage and Hour
Advisory Memorandum explaining the impact of Alvarez and reiterating its own longheld view that donning, doffing and gathering activities required to be performed in meat
processing plants start and end the continuous workday. See Filing No. 121, Index of
Evid., Ex. 2 (2006 DOL Memo). In this Advisory Memo, the Labor Department
specifically determined that simply obtaining personal protective equipment and gear
(disregarding any distinction of whether the PPE is “unique” or “non-unique”) at the
beginning of the workday is a principal activity that triggers the commencement of the
compensable workday. Id. (“the compensable day starts once the employee has
obtained the gear required to be stored on the premises by taking an item out of a bin, a
locker or another designated storage area.”).
“The FLSA prohibits the employment of any person ‘for a workweek longer than
forty hours unless such employee receives compensation for his employment in excess
of the hours above specified at a rate not less than one and one-half times the regular
rate at which he is employed.’” Lopez v. Tyson Foods, 690 F.3d 869, 874 (8th Cir.
2012) (quoting 29 U.S.C. § 207(a)(1)); IBP, Inc. v. Alvarez, 546 U.S. 21, 25 (2005). An
employee who sues for unpaid overtime has the burden of proving that he performed
work for which he was not properly compensated. Lopez, 690 F.3d at 874. “Neither
‘work’ nor ‘workweek’ is defined in the statute.” Id. (quoting Alvarez, 546 U.S. at 25).
Although “[a]t one time, the Supreme Court defined work as ‘physical or mental exertion
(whether burdensome or not) controlled or required by the employer and pursued
necessarily and primarily for the benefit of the employer and his business,’” the
Supreme Court recently clarified “that ‘exertion’ was not in fact necessary for an activity
to constitute ‘work’ under the FLSA.” Lopez, 690 F.3d at 874 (quoting Tennessee Coal,
Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598 (1944), and Alvarez, 546
U.S. at 25).
The ultimate question of whether an employee falls within the FLSA’s protection
is a question of law. Reich v. Stewart, 121 F.3d 400, 404 (8th Cir. 1997). However, the
amount of time an employee works and the duties he or she performs present factual
questions. Id.; see also De Asencio v. Tyson Foods, Inc., 500 F.3d 361, 371-73 (3d Cir.
2007) (finding the undisputed facts established that the donning and doffing activity
constituted “work” as a matter of law); see generally Donovan v. Weber, 723 F.2d 1388,
1391-1392 (8th Cir. 1984) (“The determination of enterprise coverage under the FLSA is
one that must be resolved on the facts of each case, but is nevertheless a question of
law”); Walton v. Greenbrier Ford, 370 F.3d 446, 450 (8th Cir. 2004); Stewart v. Pafford
Ambulance Servs., Inc., 2001 U.S. App. LEXIS 14418, *2 (8th Cir. 2000).
Whether an employee’s activity is “work” does not end the compensability
analysis. Lopez, 690 F.3d at 874. In the Portal-to-Portal Act, Congress excluded some
activities that might otherwise constitute work from the FLSA. Id. The Act excepts two
categories: (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
(2) activities which are preliminary to or postliminary to said principal activity or
activities, which occur either prior to the time on any particular workday at which such
employee commences, or subsequent to the time on any particular workday at which he
ceases, such principal activity or activities.
Alvarez, 546 U.S. at 26–28.
Id. (quoting 29 U.S.C. § 254(a)); see
“Whether an activity is preliminary or postliminary to
principal activities for purposes of § 254(a)(2) of the Portal-to-Portal Act is a mixed
question of law and fact because the precise nature of the employee’s duties is a
question of fact, while application of the FLSA to those duties is a question of law.”
Baker v. Barnard Constr. Co., Inc., 146 F.3d 1214, 1216 (10th Cir. 1998); see also
Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 741 n. 19, 743 (1981).
“‘[A]ctivities performed either before or after the regular work shift, on or off the
production line, are compensable . . . if those activities are an integral and
indispensable part of the principal activities for which covered workmen are employed
and are not specifically excluded by [29 U.S.C. § 254(a)(1) ].’” Lopez, 690 F.3d at 874
(quoting Steiner v. Mitchell, 350 U.S. 247, 256 (1956)). Further, “any activity that is
‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal activity’ under [29
U.S.C. § 254(a) ].” Lopez, 690 F.3d at 874 (quoting Alvarez, 546 U.S. at 37).
“The Department of Labor has a ‘continuous workday rule,’ generally defining an
employee’s ‘workday’ as ‘the period between the commencement and completion on
the same workday of an employee’s principal activity or activities.’” Lopez, 690 F.3d at
874 (quoting 29 C.F.R. § 790.6(b)); see Alvarez, 546 U.S. at 29, 37 (describing and
applying the continuous workday rule). “During the continuous workday, the
compensability of all activities that otherwise satisfy the requirements of the FLSA is not
affected by the Portal-to-Portal Act’s exceptions.”
The Eighth Circuit Court of
Appeals acknowledges that in Alvarez, “the Supreme Court held that ‘during a
continuous workday, any walking time that occurs after the beginning of the employee’s
first principal activity and before the end of the employee’s last principal activity is
excluded from the scope of [the Portal-to-Portal Act], and as a result is covered by the
FLSA.’” Id. (quoting Alvarez, 546 U.S. at 37); see also Steiner, 350 U.S. at 252–53
(holding that the term “principal activity or activities” includes all activities that are an
“integral and indispensable part of the principal activities” for which the employee is
If an employer requires his employees to don and doff work clothes at the
workplace, then donning and doffing are an integral and indispensable part of the
workers’ main activity and therefore a principal activity. Steiner, 350 U.S. at 256. In
Alvarez, the United States Supreme Court held that when donning and doffing is
required, the time the worker spends walking from the locker room to the worksite is not
time walking to and from a principal activity, but instead time walking between principal
activities, and so is not within the exemption created by the Portal-to-Portal Act, just as
if the worker were a millwright who inspects, repairs, replaces, installs, adjusts, and
maintains mechanical equipment in different parts of the steel mill and to do these tasks
must walk from one piece of equipment to another. See Alvarez, 546 U.S. at 37.
“Because doffing gear that is ‘integral and indispensable’ to employees’ work is a
‘principal activity’ under the statute, the continuous workday rule mandates that time
spent waiting to doff is not affected by the Portal-to-Portal Act and is instead covered by
the FLSA.” Id.
Donning and doffing food safety uniforms and protective gear at the beginning
and end of work shifts at food processing plants have been held to be activities that are
an integral and indispensable part of the principal activity of employment and thus are
principal activities. See Perez v. Mountaire, 650 F.3d 350, 364-65 (4th Cir. 2011).
Under the Ninth Circuit’s decision in lower court proceedings in Alvarez, the donning
and doffing of protective gear at the beginning and the end of a work shift are defined as
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 v. IBP, Inc., 339 F.3d 894, 902-03 (9th Cir. 2003), aff’d, 546
U.S. 21 (2005). 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.
§ 790.8(c) n.65); see also Franklin v. Kellogg Co., 619 F.3d 604, 619-20 (6th Cir. 2010);
Bonilla v. Baker Concrete Constr., Inc., 487 F.3d 1340, 1344 (11th Cir. 2007).
In the meat or poultry processing industry, “[t]he donning and doffing of the
employees’ protective gear at the beginning and end of work shifts is necessary to their
work on the ‘production line.’” Perez, 650 F.3d at 367 (stating “[t]he overriding concerns
of safety and sanitation plainly mandate this conclusion.”). Employees of poultry and
meat processing facilities are required as a matter of federal law to wear certain
protective gear on the “production line.” See 29 C.F.R. § 1910.132(a); 9 C.F.R. § 416.5;
see Perez, 650 F.3d at 366 (stating that these legal requirements are based on
regulations concerning sanitation promulgated by the United States Department of
Agriculture, and on safety regulations established by OSHA). Because of the
importance of protective gear in establishing the safety and sanitation of the “production
line” in a meat-packing plant, employees’ acts of donning and doffing at the beginning
and the end of their work shifts primarily benefit the employer. Perez, 650 F.3d at 367;
see Alvarez, 546 U.S. at 37.
The DOL has promulgated a regulation relating to meal periods. That regulation
states 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. For example,
an office employee who is required to eat at his desk or a factory worker
who is required to be at his machine is working while eating.
29 C.F.R. § 785.19(a).
The Eighth Circuit Court of Appeals has rejected the
“completely-relieved-from-duty” standard in favor of the “predominantly-for-the-benefitof-the-employer” standard. Lopez, 690 F.3d at 881; Henson v. Pulaski County Sheriff
Dep’t, 6 F.3d 531, 533-35 (8th Cir. 1993) (concluding “that the predominantly-for-thebenefit-of-the-employer standard provides the appropriate test for determining the
compensability of meal periods under the FLSA” and noting that the DOL regulations
“do not bind us, as it is the courts that ultimately interpret the FLSA”); accord Lamon v.
City of Shawnee, Kansas, 972 F.2d 1145, 1157 (10th Cir. 1992); Hill v. United States,
751 F.2d 810, 814 (6th Cir. 1984) (stating a meal period is bona fide “[a]s long as the
employee can pursue his or her mealtime adequately and comfortably, is not engaged
in the performance of any substantial duties, and does not spend time predominantly for
the employer’s benefit, the employee is relieved of duty and is not entitled to
compensation under the FLSA.”). When employees seek compensation only for the
time periods in which the acts of donning and doffing occur, the court is not confronted
with the issue of whether the entire meal period predominately benefits the employer,
but instead decides whether the time periods during which these activities occur, and for
which compensation is sought, predominately benefit the employer. Perez, 650 F.3d at
The de minimis doctrine provides a limiting principle to compensation for trivial
calculable quantities of work.
De Asencio, 500 F.3d at 373-74. The work week
contemplated under the FLSA:
must be computed in light of the realities of the industrial world. When the
matter in issue concerns only a few seconds or minutes of work beyond
the scheduled working hours, such trifles may be disregarded. Splitsecond absurdities are not justified by the actualities of working conditions
or by the policy of the Fair Labor Standards Act. 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. Mount Clemens Pottery Co., 328 U.S. 680, 692 (1946). Courts applying
the de minimis rule should consider three things: (1) the practical difficulty of recording
the compensable time, (2) the aggregate amount of time at issue, and (3) the regularity
with which the task is performed. See Rutti v. Lojack Corp., 596 F.3d 1046, 1056–57
(9th Cir. 2010); De Asencio, 500 F.3d at 374; Gorman v. Consol. Edison Corp., 488
F.3d 586, 594 n.7 (2d Cir. 2007); Brock v. City of Cincinnati, 236 F.3d 793, 804 (6th Cir.
2001); and Reich v. Monfort, Inc., 144 F.3d 1329, 1333 (10th Cir. 1998) (finding that
donning and doffing time of ten minutes was not de minimis). In assessing whether a
claim is de minimis, courts consider the size of the aggregate claim. Lindow, 738 F.2d
at 1063. Courts have granted relief for claims that might have been minimal on a daily
basis but, when aggregated, amounted to a substantial claim. Id.; see Addison v. Huron
Stevedoring Corp., 204 F.2d 88, 95 (2d Cir. 1953) (less than $1.00 per week not de
minimis); Glenn L. Martin Nebraska Co. v. Culkin, 197 F.2d 981, 987 (8th Cir. 1952) (30
minutes per day over one and one-half years not de minimis); Saunders v. John Morrell
& Co., 1992 WL 531674, *2 (N.D. Iowa 1992) (finding the plaintiffs’ claims were not de
minimis as a matter of law); Schimerowski v. Iowa Beef Packers, Inc., 196 N.W.2d 551,
555-56 (Iowa 1972) (15 minutes per day, amounting to verdicts ranging from $248.04 to
$508.44, not de minimis). 3
In compensating for “work,” the FLSA contemplates compensation for actual, not
reasonable, time. See Alvarez, 546 U.S. at 37 (adopting “continuous workday” logically
mandates actual time); see Helmert v. Butterball, 805 F. Supp. 2d 655, 665 (E.D. Ark.
2011) (explaining that although damages may be awarded on a reasonable basis, the
FLSA requires employers to compensate their employees for actual hours worked);
Jordan v. IBP, Inc., 2004 WL 5621927, *13 (M.D. Tenn. 2004) (noting that the Reich
injunction does not merely require the employer to compensate employees for
reasonable time spent in the activities as a prospective matter); Garcia v. Tyson Foods,
Some courts have found, however, that tasks that take less than 10 minutes each working day
are de minimis. Lindow v. United States, 738 F.2d 1057, 1062 (9th Cir. 1984) (collecting cases). The
Office of Personnel Management, which handles wages of federal civilian employees, has adopted a 10minute rule by regulation. 5 C.F.R. § 551.412(a)(1).
Inc., 474 F. Supp. 2d 1240, 1248 (D. Kan. 2007) (same).4 The term “employ” is defined
in section 203(g) expansively as “to suffer or permit to work.”
United States v.
Rosenwasser, 323 U.S. 360, 363 (1945). The FLSA “typically requires employers to
pay their employees for all time spent working on their behalf.” Smith v. Aztec Well
Serv. Co., 462 F.3d 1274, 1285 (10th Cir. 2006); see Mumbower v. Callicott, 526 F.2d
1183, 1188 (8th Cir. 1975).
The “reasonableness” inquiry comes into play “as a benchmark for courts to
assess the amount of overtime compensation to which a plaintiff is entitled where that
amount is uncertain or unrecorded by his or her employer.” Bull v. United States, 68
Fed. Cl. 276, 278-79 (2005), aff’d, 479 F.3d 1365 (Fed. Cir. 2007). When the employer
has failed to record compensable time and the employees have proved that they
actually performed the work in question, the plaintiffs need only produce evidence
sufficient to support a reasonable inference of the amount and extent of that work.
Anderson, 328 U.S. at 687; Metzler, 127 F.3d at 965-66. “The burden then shifts to the
employer to come forward with evidence of the precise amount of work performed or
with evidence to negative the reasonableness of the inference to be drawn from the
employee [s’] evidence.” Anderson, 328 U.S. at 687-88. “The employer cannot be
heard to complain that the damages lack the exactness and precision of measurement
that would be possible had he kept records in accordance with the requirements of [the
FLSA].” Id. at 688.
This statement is not at odds with the Eighth Circuit’s holding in Lopez, 690 F.3d at 878. The
court therein held only that the plaintiffs had not preserved the issue, and on plain error review, found the
error, if any, did not affect the plaintiffs’ substantial rights. Id.
The Nebraska Wage Payment and Collection Act, specifically Neb. Rev. Stat. §
48-1229(4), defines the term “wages” very broadly as follows: “Wages means
compensation for labor or services rendered by an employee, including fringe benefits,
when previously agreed to and conditions stipulated have been met by the employee,
whether the amount is determined on a time, task, fee, commission, or other basis.”
Neb. Rev. Stat. § 48-1229 (4) (emphasis added). Under Nebraska law, the statutory
words “previously agreed to and conditions stipulated have been met” require only that
the employer has “agree[d] to pay plaintiffs at the appropriate rate of pay for the duties
they were performing.” Hawkins v. City of Omaha, 627 NW 2d 118, 130 (2001). The
Nebraska Wage and Hour Act was enacted to establish a minimum wage for all workers
and to safeguard existing minimum wage compensation standards. Neb. Rev. Stat. §
48-1201. The Wage and Hour Act requires employers to pay each employee wages at
a minimum rate. Neb. Rev. Stat. § 48-1203(1). Also, the provisions of FLSA set the
minimum wage in terms of an hourly rate. See 29 U.S.C. § 206(a). A violation of
§ 206(a) occurs when an employee is paid at a rate that is below the minimum rate. Id.
The statute requires the payment of a minimum wage to “employees who in any
workweek [are] engaged in commerce,” 29 U.S.C. § 206(a), and sets the minimum
wage in terms of an hourly rate. Hensley v. MacMillan Bloedel Containers, Inc., 786
F.2d 353, 357 (8th Cir. 1986). With respect to the FLSA’s minimum wage requirement,
“no violation occurs ‘so long as the total weekly wage paid by an employer meets the
minimum weekly requirements of the statute, such minimum weekly requirement being
equal to the number of hours actually worked that week multiplied by the minimum
hourly statutory requirement.’” Id. (quoting United States v. Klinghoffer Bros. Realty
Corp., 285 F.2d 487, 490 (2d Cir. 1960)) (known as “Klinghoffer rule”).
A. Plaintiffs’ Motion
The court first finds that undisputed evidence establishes that the plaintiffs are
entitled to judgment as a matter of law on their claim for donning and doffing of “kniferelated” protective gear as well as other sanitary gear required by Tyson. The plaintiffs
base their motion, in part, on the preclusive effect of the injunction entered in Reich v.
IBP, 820 F. Supp. 1315, 1327 (D. Kan. 1993), aff’d, 38 F.3d 1123 (10th Cir. 1994),
reaff’d sub nom., Metzler v. IBP, Inc., 127 F.3d 959, 962-963 (10th Cir. 1997). The
Reich case established that the donning and doffing of Tyson’s knife-related protective
equipment at the Madison plant is compensable “work” covered by the FLSA and is not
excluded from coverage by the Portal Act. Id. at 1326.
The defendant vehemently argues that the Reich case should not be afforded
preclusive effect. The court need not address res judicata or collateral estoppel issues
since the court finds it is not necessary to rely on Reich in making this determination.
Supreme Court precedent applied to the undisputed facts in this case mandates that
donning and doffing protective as well as sanitary or standard equipment (i.e., frock,
white pants, white shirt, rubber apron, rubber gloves, cotton gloves, hairnet, beardnet,
ear plugs, hardhat and safety glasses) at the beginning and end of the continuous
workday is work entitled to compensation under the FLSA. See Alvarez, 546 U.S. at 37;
Steiner, 350 U.S. at 256.
Further, the concomitant walking and transportation
connected to that activity is compensable. See Alvarez, 546 U.S. at 28-30, 37. The
undisputed evidence and Tyson’s own admissions establish that the donning and
doffing of those articles is required by Tyson, is necessary for an employee to perform
his or her job, and primarily benefits Tyson. Since the Alvarez decision, the Department
of Labor has made it clear that it regards the donning and doffing of such gear to be
compensable work under the FLSA. It is undisputed that the protective and sanitary
items of clothing are either required by law, company policy or the nature of the work.
On this record, no reasonable juror could find that these activities are not
primarily for the benefit of the employer.
Notwithstanding the incidental benefit to
employees of warmth and protection from injury, it is clear that Tyson derives the
primary benefit of the equipment.
Maintaining sanitary conditions is of the utmost
importance in a meat processing facility. Protecting employees from injury provides a
benefit to the employer as well as to the employee by limiting workers’ compensation
claims. If the employees did not wear the items at issue, the employer would be unable
to maintain a processing facility that would comply with federal and state food safety
laws. The reputation of the company, its “branding” efforts, and consumer confidence in
its products are dependent on the sanitary conditions of its plants.
It is undisputed that employees are required by Tyson to wear most, if not all, of
the equipment. Tyson’s own documents and materials show the importance of such
sanitary equipment and the emphasis the company places on food safety.
cannot seriously dispute that the primary purpose of the personal protective equipment
and sanitary clothing is to protect its production line and products from contamination.
Accordingly, the court finds as matter of law that such activities are compensable.
The same logic applies to the unpaid time that employees are required to spend
donning, doffing and sanitizing at the beginning and end of their meal period. Donning
and doffing at mealtime is no less a principal activity in the middle of the day than at the
beginning of the shift. The articles remain integral and indispensable to the employees’
Donning and doffing for meals is also for the company’s benefit to avoid
bacteria and other contaminants being brought back to the production area on return
from the shutdown/meal period. Any benefit that inures to the employees in that they
can dine without blood and meat products on their clothing is vastly overshadowed by
the benefits to the employer in maintaining a sanitary production facility. The court finds
that these donning and doffing activities predominantly benefit the employer.
Undisputed evidence shows that donning and doffing the articles after meal and
restroom breaks enables the defendant to meet federal regulations requiring employees
to wear clean garments and the company to maintain hygienic practices on the
production floor. The benefit of such practices to the defendant is great in consideration
of the potential for damages that could result from selling a contaminated food product.
Accordingly, the court finds as a matter of law that time spent donning and doffing at
meal time is work entitled to compensation under the FLSA and cannot be regarded as
part of the bona fide meal period carved out of the continuous workday.
The court also finds that the undisputed evidence and Tyson’s admission show
that the uncompensated time cannot be regarded as de minimis. It is undisputed that
the donning and doffing activities occur regularly, in fact, every workday. The plaintiffs
have produced evidence that they lose some part of every 30-minute unpaid meal
period to these activities, as well as time at the beginning and end of their shifts.
Although the parties disagree on the amount of time that should be compensated, there
is no dispute that the uncompensated activities add up to several minutes a day, which
in the aggregate amounts to more than a de minimis amount as compared to the
plaintiffs’ wages. Tyson has not shown that it would be impossible or impractical to
record and pay for the donning and doffing activities.
It admits that it has a time-
keeping system. That system could be modified to include the donning, doffing and
sanitizing time and any potential “time-wasting” issues can be adequately addressed
through the development of sound managerial and human resources policies.
The court also finds as a matter of law that Tyson is required to pay employees
for their actual time spent performing company-required donning, doffing, walking and
sanitizing. “Reasonable time” is relevant only as it relates to determination of a backpay
award, if actual time cannot be calculated.
There are factual disputes regarding the time it takes the employees to don and
doff the clothing and equipment, and as to whether the additional time Tyson has
provided for such activities is sufficient. The court also finds there are genuine issues of
material fact with respect to Tyson’s affirmative defense of “good faith” under §§ 259
and 260 of the FLSA. Issues of intent and motivation generally require assessments of
credibility. Accordingly, the court finds that the plaintiffs’ motion for summary judgment
on that issue should be denied.
B. Defendant’s Motion
The court finds the defendant’s motion to dismiss the plaintiffs’ state law claims
should be denied. The defendant has presented no authority for the proposition that the
“Klinghoffer rule” on averaging weekly wages to determine minimum wage applies to
the Nebraska Wage and Hour Act or that it applies in the absence of any agreement to
that effect. In view of the fact that there are material factual disputes over the amount of
unpaid wages due the plaintiffs, defendant’s motion to dismiss the Nebraska Wage and
Hour Act claim will be denied at this time, without prejudice to reassertion at trial.
The court also finds the defendant’s motion should be denied with respect to the
Nebraska Wage Payment and Collection Act, Neb. Rev. Stat. § 48-1228 et seq. The
defendant asserts the plaintiffs cannot prove that they are owed compensation under
the statute because “(1) they cannot determine that the alleged ‘wages’ owed were
previously agreed to by defendant; and (2) they cannot demonstrate that they have met
any conditions that were stipulated to.” These are the same grounds advanced and
rejected in Lopez v. Tyson, No. 8:06CV459, Filing No. 235, Memorandum and Order at
26 (D. Neb. April 6, 2011). The court again rejects both of defendant’s arguments. Id.
at 26-27. Plaintiffs are/were hourly production employees of the defendant; they may
use the NWPCA as a mechanism for collecting any uncompensated wages. Thus,
defendant’s motion for summary judgment on plaintiffs’ NWPCA claim will be denied.
For the reasons stated above in connection with plaintiffs’ motion for summary
judgment on the meal break claims, the court finds the defendant’s motion for summary
judgment in its favor on the plaintiffs’ mid-shift donning and doffing claims should be
IT IS HEREBY ORDERED:
1. The plaintiffs’ motion for summary judgment (Filing No. 119) is granted in part
and denied in part as set forth in this order.
2. The defendant’s motion for summary judgment (Filing No. 117) is denied.
3. The plaintiffs’ motion for leave to file a declaration attesting to the accuracy of
the plaintiffs’ exhibits filed in support of their motion for summary judgment (Filing No.
180) is granted.
4. The defendant’s motion for leave to file a surreply brief (Filing No. 186) is
Dated this 14th day of December, 2012.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge
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