De Asencio v. Tyson Foods, Inc.

• Decision Date: 06 September 2007
• Docket Number: No. 06-3502.,06-3502.
• Citation: 500 F.3d 361
• Parties: Melania Felix DE ASENCIO; Manuel A. Gutierrez; Asela Ruiz; Eusebia Ruiz; Luis A. Vigo; Luz Cordova; Hector Pantajos, on behalf of themselves and all other similarly situated individuals, Appellants v. TYSON FOODS, INC.
• Court: U.S. Court of Appeals — Third Circuit

500 F.3d 361

Melania Felix DE ASENCIO; Manuel A. Gutierrez; Asela Ruiz; Eusebia Ruiz; Luis A. Vigo; Luz Cordova; Hector Pantajos, on behalf of themselves and all other similarly situated individuals, Appellants v. TYSON FOODS, INC.

No. 06-3502.

United States Court of Appeals, Third Circuit.

Argued July 12, 2007.

Filed September 6, 2007.

Thomas J. Elliott, Frederick P. Santarelli (Argued), Franco A. Corrado, Elliott,

Greenleaf & Siedzikowski, Blue Bell, PA, for Appellants.

Michael J. Mueller (Argued), Joel M. Cohn, Michael S. McIntosh, Akin, Gump, Strauss, Hauer & Feld, Washington, DC, for Appellee.

Howard M. Radzely, Solicitor of Labor, Steven J. Mandel, Associate Solicitor, Paul L. Frieden, Counsel for Appellate Litigation, Joanna Hull (Argued), U.S. Department of Labor, Washington, DC, for Amicus Curiae Appellants, Secretary of Labor.

Robin S. Conrad, National Chamber Litigation Center, Inc., Washington, DC, Thomas J. Walsh, Jr., Arnold E. Perl, Patrick D. Riederer, Ford & Harrison LLP, Memphis, TN, for Amicus Curiae Appellee, Chamber Commerce of the United States.

David R. Wylie, D. Christopher Lauderdale, Jackson Lewis LLP, Greenville, SC, for Amicus Curiae Appellee, National Chicken Council and American Meat Institute.

Before: SLOVITER, ALDISERT, and ROTH, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

In instructing the jury in this case brought by poultry workers under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA" or "Act"), the District Court stated that in considering whether the workers' donning, doffing and washing was "work" under the Act, the jury must consider whether the activities involved physical or mental exertion. The jury decided the issue of work against the workers and therefore never reached the defenses proffered by the employer. The workers appeal, arguing that the District Court's instruction on donning and doffing was erroneous as a matter of law.¹ This is an issue that has created considerable interest.²

I.

Plaintiffs/Appellants are current and former chicken processing plant workers in New Holland, Pennsylvania, who brought this action against Tyson Foods, Inc. ("Tyson"), arguing that Tyson does not pay them for the time they spend "donning and doffing," as well as washing, their work gear. Tyson requires its employees to put on and take off safety and sanitary clothing (i.e., "donning and doffing"), and engage in washing activities, pursuant to government regulations and corporate or local policy and practice.³ This time must be spent six times a day: before and after their paid shifts and two daily meal breaks. Most employees generally wear a smock, hairnet, beard net, ear plugs, and safety glasses.⁴ Additional sanitary and protective items that certain employees wear include a dust mask, plastic apron, soft plastic sleeves, cotton glove liners, rubber gloves, a metal mesh glove, and rubber boots.

Tyson's witness Michael Good, the complex's manager, testified that these activities take six to ten minutes collectively per shift (presumably per employee). Appellants' expert estimated that the activities take 13.3 minutes per shift.⁵ Although Tyson does not record the time its workers spend on donning and doffing, Tyson avers that certain of the employees receive an extra fifteen minutes of compensation "which is enough to fully compensate the plaintiffs for the very activities that are the basis for this suit." Appellee's Br. at 6. However, Good testified at trial that employees in the "receiving, killing, and picking" and "evisceration" departments do not receive the extra fifteen minutes of compensation.

Appellants filed suit against Tyson on August 22, 2000, under both the FLSA and state law (the Pennsylvania Wage Payment and Collection Law ("WPCL"), 43 Pa. Cons.Stat. §§ 260.1-260.45) on behalf of themselves and similarly situated co-workers at Tyson's chicken processing complex, alleging that Tyson was liable to its employees for time spent donning, doffing and washing. See De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 304, 312 (3d Cir.2003). Appellants sought collective treatment of their FLSA action under the Act's opt-in provisions; 540 workers joined the suit. On interlocutory appeal, this court decided that "the District Court did not exercise sound discretion in granting supplemental jurisdiction over the WPCL action," and denied certification of the WPCL class with respect to all plaintiffs. De Asencio, 342 F.3d at 312.

Tyson subsequently moved for summary judgment, arguing first, that "the acts of donning, doffing, and sanitizing protective clothing and equipment are not work as defined by the FLSA." App. at 2357. Second, Tyson argued that, "if such activities are work, then they are de minimis and thus should not be compensated."⁶ Id. Third, Tyson alleged that the activity, if work, would nevertheless be "not compensable under the Portal to Portal Act." Id. In denying summary judgment on each of these bases, the District Court concluded that it would be "hasty" to rule on the mixed law/fact question of whether the activity was compensable "work" without further development of the record. It observed that there was "minimal relevant case law in our jurisdiction" and "there is significant disagreement among the jurisdictions who have considered these issues." Id. The Court believed "such a decision would be a mistake and a disservice to the body of law on which we depend" and concluded that, in view of the "many disputed factual issues intertwined with the legal issues" on these three points, "summary judgment is not appropriate and would be premature at this time." App. at 2357, 2359.

Trial commenced in this action in June 2006.⁷ In their joint pretrial memorandum, the parties identified the legal issues at trial to be "1. Whether the activities and time at issue constitute `work' for purposes of the FLSA? . . . 2. Whether the time incurred on such activities is de minimis for purposes of the FLSA? 3. Whether the `opt-ins' [to the class] are similarly situated and have put on representative evidence for purposes of the FLSA?" App. at 2478. To expedite the trial, Tyson withdrew "its position that the clothes-changing and washing activities were not `integral and indispensible' to the principal activities that the plaintiffs were hired to perform." Id.

During the charging conference, the parties sparred over the definition of "work" that would be read to the jury. Appellants' counsel argued that "[a]ny instruction that equates work with the need for any level of physical or mental exertion directly contradicts the [Supreme Court's] decision in IBP v. Alvarez, where the [C]ourt expressly stated [that] exertion is not, in fact, necessary for an activity to constitute work under the FLSA," and counsel cited to Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118 (1944), in support of that proposition. App. at 2035. In response, Tyson's counsel argued that Alvarez does not overrule the Supreme Court's pre-Armour definition of 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." Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944). They argued that the Armour decision, which held that time on call spent by a private firefighting force could be deemed "work," merely "talks about a situation where an individual is engaged to wait," App. at 2036, and that "[w]e don't have that situation here. Here we have a situation where they're alleging that certain types of physical activities are work, and it's our position that in that context, it's Tennessee Coal . . . [that] should be applied and that's what our instruction tracks, [y]our Honor." App. at 2037. In response, appellants' counsel emphasized that the Supreme Court's Alvarez decision "unanimously, unanimously stated that" the Armour decision "clarif[ied] that exertion is not, in fact, necessary for an activity to constitute work under the FLSA, period. And I don't know how you can get around that." App. at 2037.

The District Court ultimately gave the following work instruction:

Work is what we're talking about. What — does the activity the plaintiffs claim they were doing or performing, was it work? To find that an employee should be paid for an activity under the Fair Labor Standards Act, you first need to determine whether or not the activity at issue is work. The law states that work is any 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 its business. . . .

I said it requires exertion, either physical or mental, but exertion is not, in fact, necessary for all activity to constitute work under the Fair Labor Standards Act[. T]here — an employer, if he chooses, may hire a worker to do nothing or to do nothing but wait for something to happen. So that would be an exception of the usual situation where the definition of work requires exertion.

The plaintiffs claim that their donning, doffing, washing and rinsing activities are work. In deciding whether these activities are work under the law, you may consider the following factors. For each job position, if the donning, doffing and washing at issue do not require physical or mental exertion, the activities are not work. Therefore, you may ask yourself, is the clothing heavy or cumbersome, or is it lightweight and easy to put on or take off? Does an employee need to concentrate to wash their hands or gloves or put on or take off these clothes? Can an employee put on or take off their clothes or wash their hands or gloves while walking, talking or doing other things?

App. at 2209-11 (emphasis added).

Following two and one-half hours of deliberation, the jury submitted a written question to the...