Opinion
BENTON, Circuit Judge.
Maria Guyton and Dionicio Canuzal are employees of Tyson Foods, Inc. They represent a class of employees at Tyson's meat-processing facility in Columbus Junction, Iowa. They sued Tyson for not paying wages due under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq., and the Iowa Wage Payment Collection Law (IWPCL), Iowa Code 91A.1 et seq. A jury returned a verdict for Tyson. The employees appeal. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
The employees are current and former “gang-time” employees at Tyson's facility. The background is similar to that in Lopez v. Tyson Foods, Inc., 690 F.3d 869, 873–75 (8th Cir.2012) (adapted to the facts of this case):
To calculate the employees' compensable working time, Tyson measures “gang time”—when the employees are at their working stations and the production line is moving. The employees claim Tyson failed to provide FLSA overtime compensation for donning (putting on) personal protective equipment (PPE) and clothing before production and again after lunch, and for doffing (taking off) PPE and clothing before lunch and again after production. The PPE and clothing worn by individual employees vary depending on their role in the process. Tyson classifies items of PPE and clothing as either “unique” or “non-unique” to the meat-processing industry.... The employees also seek compensation for transporting the items from lockers to the production floor.
In addition to “gang time,” Tyson adds “K-code” time to each employee's paycheck. Before 2007, Tyson paid four minutes of K-code time per day to each [employee in a department where knives were used] in order to compensate for the donning and doffing of unique items. From [February] 2007 to March 2010, Tyson added [several minutes] per day for pre- and post-shift walking time required of the employee. Since March 2010, Tyson has paid 20 to [22] minutes per day in order to compensate for all contested activities. Tyson does not record the actual time that employees perform any of these tasks.
....
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.” 29 U.S.C. § 207(a)(1) ; IBP, Inc. v. Alvarez, 546 U.S. 21, 25, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). An employee who sues for unpaid overtime “has the burden of proving that he performed work for which he was not properly compensated.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686–87, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), superseded by statute on other grounds, Portal–to–Portal Act of 1947, Pub.L. No. 80–49, 61 Stat. 84; Fast v. Applebee's Int'l, Inc., 638 F.3d 872, 881 (8th Cir.2011). “Neither ‘work’ nor ‘workweek’ is defined in the statute.” Alvarez, 546 U.S. at 25, 126 S.Ct. 514. At 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.” Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944), superseded by statute on other grounds, Portal–to–Portal Act of 1947, Pub.L. No. 80–49, 61 Stat. 84. The Court then “clarified that ‘exertion’ was not in fact necessary for an activity to constitute ‘work’ under the FLSA.” Alvarez, 546 U.S. at 25, 126 S.Ct. 514, citing Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118 (1944).
Whether an employee's activity is “work” does not end the compensability analysis. In the Portal–to–Portal Act, Congress excluded some activities that might otherwise constitute work from the FLSA. 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.
29 U.S.C. § 254(a) ; Alvarez, 546 U.S. at 26–28, 126 S.Ct. 514. “[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) ].” Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 100 L.Ed. 267 (1956) (emphasis added). And, “any activity that is ‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal activity’ under [29 U.S.C. § 254(a) ].” Alvarez, 546 U.S. at 37, 126 S.Ct. 514.
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.” 29 C.F.R. § 790.6(b) ; Alvarez, 546 U.S. at 29, 37, 126 S.Ct. 514 (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. 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.” Alvarez, 546 U.S. at 37, 126 S.Ct. 514.
The employees sued in 2007, claiming that Tyson's K-code time was insufficient to cover compensable pre—and post-production line activities, violating the FLSA and IWPCL. The district court1 certified the FLSA claim as a collective action and the IWPCL claim as a Rule 23 class action. The parties agree that the elements are the same for both claims. The district court granted Tyson summary judgment that pre—and post-production activities during a 35–minute meal period are not compensable. On other claims, after an eleven-day trial, the jury returned a verdict for Tyson. The verdict form contained the following question:
Question No. 1
Did the plaintiffs prove their FLSA and Iowa claims on a class-wide basis for pre-shift and/or post-shift donning and doffing of the items at issue in this case because:
It is “work” within the
meaning of the FLSA _____ YES _____ NO
It is integral and indispensable
to a principal activity, _____ YES _____ NO
such that it starts and ends
the “continuous workday.”
If your answer to both parts of Question No. 1 is “NO” then do not answer any more questions and sign the verdict form.
The jury marked “Yes” to sub-part one, and “No” to sub-part two. In response to later questions, the jury found that a de minimis exception did not apply, that plaintiffs failed to prove damages, and that Tyson acted in good faith under 29 U.S.C. § 259(a). Plaintiffs appeal, arguing that the district court erred in submitting the case to a jury, in denying plaintiffs judgment as a matter of law, in excluding documentary evidence at trial, and in granting Tyson summary judgment on the meal-period claim.
Plaintiffs argue that Tyson is estopped from re-litigating the compensability of donning and doffing “unique” items related to knife use by IBP, Inc. v. Alvarez, 546 U.S. 21, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005) and Reich v. IBP, Inc., 38 F.3d 1123 (10th Cir.1994). When mutuality does not exist in a collateral estoppel claim, this court gives “deference to the district court's evaluation of the overall fairness to the litigants.” Liberty Mut. Ins. Co. v. FAG Bearings Corp., 335 F.3d 752, 757–58 (8th Cir.2003). The Supreme Court in Alvarez held that walking time to and from the production floor, after donning “special safety gear,” was compensable. Alvarez, 546 U.S. at 34, 126 S.Ct. 514. See De Asencio v. Tyson Foods, Inc., 500 F.3d 361, 371 (3d Cir.2007) (“[T]he Court [in Alvarez ] could not have concluded that walking and waiting time are compensable under the Portal–to–Portal Act if they were not work themselves.”). The court in Reich ruled that time spent donning and doffing unique PPE associated with knife use was compensable. Reich, 38 F.3d at 1127. It also ruled that time spent donning and doffing non-unique gear was not compensable—“although essential to the job, and required by the employer, any time spent on these items is not work.” Id. at 1126.
Here, the class included all gang-time employees—those who used knives and associated unique gear, and those who did not. Testimony showed that employees rotated through knife and non-knife positions. At any time, 35 to 40 percent of employees did not use...
