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July 01, 2010
Workers Sue for Pay for Time Spent Changing
Workers at several Tyson Foods chicken plants in Georgia sued their employer, claiming that Tyson should pay them for time spent donning, removing, and sanitizing required safety gear.

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What happened. Tyson Foods operates several chicken processing plants in Georgia. The employees at these plants are required to change clothes and put on protective gear for work; clothing and gear includes smocks, hairnets, beard nets, gloves, earplugs, plastic sleeves, hand and wrist protection, and boots. Workers are not permitted to take sanitary gear or clothing home with them, and they must remove smocks and other sanitary items before entering the restroom or break room. Employees must sanitize their sanitary equipment each time they enter or leave the production area.

Tyson claims that it insists on all this sanitation both because the U.S. Department of Agriculture and the Occupational Safety and Health Administration require it, and because it desires to provide a quality product to its customers.

Tyson’s employees have not historically been paid for the time required to put on, take off, and sanitize their large amount of protective gear, or the time spent walking between the production floor and the dressing areas. Employees from eight chicken procession plants in Georgia sued the company, claiming that this donning and doffing was part of work and that Tyson had broken the law by failing to compensate them for it. Tyson asked the court to dismiss the case.

What the court said. The Fair Labor Standards Act (29 U.S.C. Secs. 201-219), requires employers to pay employees for all “hours worked.” The U.S. Supreme Court has defined work as “physical or mental exertion … controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” (IBP, Inc. v. Alvarez, 2005). Tyson admitted that the donning, doffing, and sanitizing it requires could be considered work under this definition. But it argued that those activities are still not necessarily compensable under the Portal-to-Portal Act of 1947 (29 U.S.C. Sec. 254(a)(2)).

Under the Portal-to-Portal Act, traveling to and from the place an employee works and performing preliminary or postliminary activities are not compensable unless those activities are “an integral and indispensable part of the principal activities.” Compensation must begin with the employee’s first “principal activity” and cannot end until the last principal activity is complete. The employees argued that donning and doffing sanitary gear constituted an integral and indispensable part of their work activities, not a preliminary activity as Tyson characterized it.

In order to be compensable, the activity needs to be required by the employer, necessary for the employee to perform his or her duties, and primarily benefit the employer. Tyson insisted that federal law required the safety gear, and that the company itself did not require this action. It also argued that the donning, doffing, and sanitizing were not necessary for performing duties because the government regulations existed to protect consumers, not for the purpose of completing job duties.

The Court disagreed. Although government regulations require some sanitary gear, Tyson also requires it. It is necessary to the employees’ jobs because Tyson could not process or sell sanitary chickens without it, and would almost certainly require it regardless of government regulations because it would be difficult to sell chicken known to be contaminated. In other words, selling good chicken helps the business, while selling contaminated chicken would hurt it.

The employees’ donning and doffing bears no resemblance to normal clothes changing because employees can do it only at the plant under special conditions. The court held that this issue needed to go to trial in order for a jury to determine conclusively whether the donning and doffing was compensable. It refused to dismiss the case. In Re Tyson Foods, Inc., U.S. District Court for the Middle District of Georgia, No. 4:07-MD-1854 (CDL) (2010)
Point to remember. Donning and doffing that is a necessary part of an employee’s job is likely to be compensable.

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