Lopez v. Tyson Foods, Inc.

• Decision Date: 04 September 2012
• Docket Number: No. 11–2344.,11–2344.
• Citation: 19 Wage & Hour Cas.2d (BNA) 1005,690 F.3d 869
• Parties: Dimas LOPEZ, on behalf of themselves and all other similarly situated individuals; Ibeth Lopez, on behalf of themselves and all other similarly situated individuals; Santos Corona, on behalf of themselves and all other similarly situated individuals; Abel Maravilla, on behalf of themselves and all other similarly situated individuals; Maria De Jesus Ramirez, on behalf of themselves and all other similarly situated individuals; Miguel Guico, on behalf of themselves and all other similarly situated individuals; Dominga Mazariegos, on behalf of themselves and all other similarly situated individuals; Jose Sales Ortiz, on behalf of themselves and all other similarly situated individuals; Manuel Santana, on behalf of themselves and all other similarly situated individuals; Carlos Godinez, on behalf of themselves and all other similarly situated individuals; Mario Mazariegos, on behalf of themselves and all other similarly situated individuals; Carlos Medina, on behalf of themselves and all other similarly situated individuals; Brenda Revolorio, on behalf of themselves and all other similarly situated individuals; Guadalupe Macias, on behalf of themselves and all other similarly situated individuals; Rafael Medina, on behalf of themselves and all other similarly situated individuals; Norma Medina, on behalf of themselves and all other similarly situated individuals; Guadalupe Herrera–Arias, on behalf of themselves and all other similarly situated individuals; Esperanza Ceja Reyes, on behalf of themselves and all other similarly situated individuals; Maria Magdelena Sigoran, on behalf of themselves and all other similarly situated individuals; Francisco Najarro Martinez, on behalf of themselves and all other similarly situated individuals, Plaintiffs–Appellants, v. TYSON FOODS, INC., Defendant–Appellee. Secretary of Labor, Amicus on Behalf of Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

690 F.3d 869

19 Wage & Hour Cas.2d (BNA) 1005

Dimas LOPEZ, on behalf of themselves and all other similarly situated individuals; Ibeth Lopez, on behalf of themselves and all other similarly situated individuals; Santos Corona, on behalf of themselves and all other similarly situated individuals; Abel Maravilla, on behalf of themselves and all other similarly situated individuals; Maria De Jesus Ramirez, on behalf of themselves and all other similarly situated individuals; Miguel Guico, on behalf of themselves and all other similarly situated individuals; Dominga Mazariegos, on behalf of themselves and all other similarly situated individuals; Jose Sales Ortiz, on behalf of themselves and all other similarly situated individuals; Manuel Santana, on behalf of themselves and all other similarly situated individuals; Carlos Godinez, on behalf of themselves and all other similarly situated individuals; Mario Mazariegos, on behalf of themselves and all other similarly situated individuals; Carlos Medina, on behalf of themselves and all other similarly situated individuals; Brenda Revolorio, on behalf of themselves and all other similarly situated individuals; Guadalupe Macias, on behalf of themselves and all other similarly situated individuals; Rafael Medina, on behalf of themselves and all other similarly situated individuals; Norma Medina, on behalf of themselves and all other similarly situated individuals; Guadalupe Herrera–Arias, on behalf of themselves and all other similarly situated individuals; Esperanza Ceja Reyes, on behalf of themselves and all other similarly situated individuals; Maria Magdelena Sigoran, on behalf of themselves and all other similarly situated individuals; Francisco Najarro Martinez, on behalf of themselves and all other similarly situated individuals, Plaintiffs–Appellants,

v. TYSON FOODS, INC., Defendant–Appellee.Secretary of Labor, Amicus on Behalf of Appellant.

No. 11–2344.

United States Court of Appeals, Eighth Circuit.

Submitted: May 16, 2012.

Filed: Sept. 4, 2012.

Robert L. Wiggins, Jr., argued, Birmingham, AL, Kathryn M. Engdahl, Jairus M. Gilden, Minneapolis, MN, W. Michael Hamilton, Nashville, TN, Brian P. McCafferty, Blue Bell, PA, Candis A. McGowan, Daniel Arciniegas, Jacob A. Kiser, Birmingham, AL, Roger K. Doolittle, Jackson, MS, Todd Bennett, Lincoln, NE, on the brief, for Appellants.

Nickole Carrieanna Winnett, argued, Paul L. Frieden, on the brief, U.S. Department of Labor, Washington, DC, for Amicus On Behalf of Appellant.

Michael J. Mueller, argued, Washington, DC, Thomas E. Johnson, Allison D. Balus, Omaha, NE, Thomas C. Walsh, St. Louis, MO, Evangeline C. Paschal, Washington, DC, on the brief, for Appellee.

Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.

BENTON, Circuit Judge.

Dimas Lopez and 19 other employees represent a class of hourly production employees at a meat-processing facility of Tyson Foods, Inc. The employees 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 Nebraska Wage Payment and Collection Act (NWPCA), Neb.Rev.Stat. § 48–1228 et seq. The jury returned a verdict for Tyson, finding the employees did not perform any compensable work for which they were not compensated. The employees appeal. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

The employees are current and former hourly employees at Tyson's facility in Lexington, Nebraska. Tyson acquired the plant in 2001 when it purchased IBP, Inc., which operated many meat-processing facilities. The Lexington plant employs about 2400 production employees.

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.¹ 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. Tyson stipulated it must pay employees for donning and doffing unique items, but contests paying for donning and doffing non-unique items. 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 order to compensate for the donning and doffing of unique items. From January 2007 to March 2010, Tyson added up to six minutes per day for pre-and post-shift walking time required of the employee. Since March 2010, Tyson has paid 20 to 25 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 employees sued in federal court in June 2006, claiming violations of the FLSA and NWPCA. The state claim alleged Tyson violated the NWPCA by failing to pay what the FLSA required. Thus both claims turn on FLSA liability.² The district court ³ certified the FLSA claim as a collective action, see29 U.S.C. § 216(b), and the NWPCA claim as a Rule 23 class action. Two hundred twenty-five employees opted in to the FLSA class, and the opt-out NWPCA class included over 10,000.

Tyson moved for partial summary judgment, which was denied. The employees moved for partial summary judgment, which was partially granted. After a nine-day trial, the jury returned a verdict for Tyson. The employees did not move—during or after trial—for judgment as a matter of law under Rule 50 or for a new trial under Rule 59. The Secretary of Labor filed an amicus brief in support of reversal and participated in oral argument.

I.

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 compensabilityof 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.

II.

The employees argue that the district court should have granted them judgment as a matter of law that the donning and doffing of non-unique items was: (1) compensable as part of the continuous...