STORM LAKE, Iowa – During Tyson Foods Inc.’s appeal of a class-action suit against the company by employees for “donning and doffing” liability (Tyson Foods v. Bouaphakeo), Supreme Court Justice Anthony M. Kennedy told Tyson attorney Carter G. Phillips that “I just don’t understand your arguments.”

Supreme Court Justice Sonia Sotomayor added, “Mr. Phillips, I’m completely at a loss as to what you're complaining about.”

So went the oral proceedings on Tuesday, which saw the US Supreme Court questioning Tyson’s arguments for an appeal.

The case stems from current and former line workers at Tyson’s Storm Lake processing plant who claimed they were not fully paid for time spent donning and doffing 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 argued in its petition to the Supreme Court that the Eighth Circuit wrongly classified the lawsuit as a class action.

At issue is a time study that calculated the average amount of time workers spent in these activities to prove liability and damages.

MEAT+POULTRY reported earlier this week that many class-action lawsuits making headlines for the past several years target meat and poultry companies and focus on “donning and doffing” liability. With limited exception, employers must pay employees for time spent “donning” and “doffing” (putting on and taking off) protective gear. The meat and poultry industry is particularly vulnerable to donning and doffing lawsuits, and many companies have been forced to respond to class action claims, often resulting in significant liability.

The questions at issue with Tyson’s appeal are:

• Whether differences among individual class members may be ignored and a class action certified… or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample; and

• Whether a class action may be certified or maintained…or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.