MELANIA FELIX DE ASENCIO; et al. v. TYSON FOODS, INC.

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 (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 (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 Court: "What is the meaning
of exertion in the definition of work? Physical, or should we
determine what or how much exertion?" App. at 3096, 2236.
Following argument from the parties, the District Court read the
jury the Webster's Dictionary definition of "exertion" and
re-read the above jury charge on "work." App. at 2236-39.

Thereafter, the jury returned a unanimous verdict finding
plaintiffs had not "provided representative evidence that [the
activities at issue] are ‘work'" for purposes of the FLSA. App.
at 3094-95. As a result, the jury did not reach the questions on
the back of the verdict form as to whether the work was de
minimis or whether appellants had been paid extra minutes to
compensate for such time. Based on the jury's verdict, the
District Court entered judgment on behalf of Tyson Foods.

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