3rd Circuit Backs Tyson Workers in Donning/Doffing Appeal

The 3rd U.S. Circuit Court of Appeals has ruled for a group of chicken processing workers in overturning a lower court's jury instruction about the definition of "work" in a trial involving time the workers spent donning, doffing, and washing their smocks and protective equipment, including ear plugs, safety glasses, dust masks, gloves, sleeves, and boots. A unanimous panel of the Philadelphia appeals court held Sept. 6 that the donning and doffing time involved was "work" as a matter of law, and it remanded the case to the trial court.

The case, Melania Felix de Asencio, et al. v. Tyson Foods Inc., No. 06-3502, involves former and current workers at a New Holland, Pa., plant. The group filed suit against Tyson in August 2000 under the Fair Labor Standards Act and the Pennsylvania Wage Payment and Collection Law. To get the case to trial in June 2006, Tyson withdrew its position that the clothes-changing and washing activities weren't "integral and indispensable" to the work the employees had been hired to perform, and this withdrawal could be a factor in how the remanded case is decided. (The parties differ about the time spent per employee on the activities, which Tyson said is six to 10 minutes but the workers said is 13 minutes per day.) The critical point of the trial was a jury instruction that said the term "work," which is not defined in the FLSA, must involve some physical or mental exertion. The U.S. Supreme Court in 2005 in IBP Inc. v. Alvarez, 546 U.S. 21, however, held that exertion is not necessary for an activity to constitute work under the FLSA. The jury in this case sent out a question during deliberations inquiring about the meaning of exertion in the definition of work, and it subsequently decided the plaintiff workers had not provided evidence that the activities were work under the FLSA. Tyson argued on appeal that a 2004 10th Circuit Court of Appeals decision is controlling on this point, but the 3rd Circuit disagreed.

This case is one in a series of federal court cases involving donning and doffing time. The U.S. Labor Department, the U.S. Chamber of Commerce, the National Chicken Council, and the American Meat Institute filed amicus briefs in this appeal, with the Labor Department supporting the workers The 3rd Circuit decides cases from lower courts in Pennsylvania, New Jersey, and Delaware.

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