Tyson Case in Pa. Debates Pay for Time Donning Safety Gear

By | September 11, 2007

Whether work deserves pay doesn’t depend on how demanding it is, an appeals court ruled last week in reviving a lawsuit filed by workers at a Tyson Foods poultry plant.

The workers seek pay for the time they spend donning and doffing protective clothing. A federal jury last year rejected the claims filed on behalf of more than 500 current or former workers at a Lancaster County, Pennsylvania plant.

The 3rd U.S. Circuit Court of Appeals said the trial judge erred in asking the jury to consider whether the gear was cumbersome or heavy.

“This language in effect impermissibly directed the jury to consider whether the poultry workers had demonstrated some sufficiently laborious degree of exertion, rather than some form of activity controlled or required by the employer,” Judge Dolores Sloviter wrote in the ruling.

The case hinged on whether those activities constitute “work” under federal labor law. Several courts have found that some employers must pay people — such as firefighters — to do nothing but wait for something to happen, the ruling noted.

The appeals court remanded the Tyson case to the district judge for further proceedings.

The Tyson workers are required to take the gear on and off six times a day — before and after each shift and two meal breaks, the opinion said. Most employees wear a smock, hairnet, ear plugs and safety glasses, while some also wear a dust mask, gloves, rubber boots or other items.

Plant manager Michael Good testified at trial that the activities take a worker six to 10 minutes each shift, while an expert witness for the workers put the time at more than 13 minutes.

Lawyers Frederick P. Santarelli, who represented the workers on appeal, and Michael J. Mueller, who represented Tyson, did not immediately return phone messages left Thursday seeking comments.

The jury verdict came after a day of deliberations that followed a 21/2-week trial.

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