A new dawn for 'don-doff' lawsuits?

by Erica Shaffer
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KANSAS CITY, Mo. – Tyson Foods Inc. just lost a US Supreme Court challenge against a class-action lawsuit over donning and doffing liability. What lesson can other companies in the meat and poultry industry take from the case and the high court’s ruling?

“The clear implication is that it’s better to not have any donning and doffing liability than it is to try and fight this issue in court,” said John Cruickshank, an attorney with the Houston-based law firm of Alaniz, Schraeder, Linker, Farris & Mayes LLP which specializes in labor and employment law.

In a 6-2 ruling, the Supreme Court upheld the verdict by an Iowa jury which found Tyson Foods liable for paying workers for time spent donning and doffing protective gear. Current and former line workers at Tyson Foods’ Storm Lake pork processing plant claimed they were not fully paid for time spent putting on and taking off protective gear before and after their shifts prior to 2010. The employees won their case in US District Court and were awarded $5.8 million in damages and attorney’s fees.  But Tyson appealed the judgment to the Eighth Circuit, which later upheld the lower court’s ruling. Tyson appealed the case to the Supreme Court, which released its verdict on March 23.

“The Supreme Court upheld an Iowa jury’s verdict in which donning and doffing liability was proven, in part, by statistical modeling and representative sampling,” Cruickshank explained. “It’s a clear win for the plaintiffs’ bar because using models and representative samples are an easier evidentiary burden than having to prove the liability on a case-by-case basis.”

The meat and poultry industry is particularly vulnerable to lawsuits over donning and doffing liability. Employers must pay employees for time spent donning and doffing protective gear, with limited exceptions. Cruickshank said the Supreme Court was careful to limit the applicability of the ruling to donning and doffing claims. But there are ways that employers can minimize the risk of litigation in the first place.

“[Donning and doffing] liability is the result of operational deficiencies that fail to record employees’ full time worked,” he noted. “Staying in compliance means having procedures in place that prevent that failure from occurring and can be proven with existing time records.  Meat and poultry companies that aren’t sure if they are in compliance should check with someone who knows what to look for.”

Tyson Foods and the plaintiffs will return to the District Court in Iowa. Tyson can choose to accept the Iowa jury’s verdict, Cruickshank said, or continue to challenge it with further appeals. David Van Bebber, general counsel for the company, said the company is studying the opinion, paying particular attention to whether damages can be allocated to ensure uninjured members of the class don’t receive money from the lump sum award.

Cruickshank said Chief Justice John Roberts’ concurring opinion offered strategies for challenging the jury verdict. Roberts joined the majority opinion, but wrote in his concurring opinion that he was concerned “that the District Court may not be able to fashion a method for awarding damages only to those class members who suffered an actual injury.”

“…if there is no way to ensure that the jury’s damages award goes only to injured class members, that award cannot stand,” Roberts wrote. “This issue should be considered by the District Court in the first instance. As the Court properly concludes, the problem is not presently ripe for our review.”

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