Wage and Hour trial for Tyson Lexington, NE plant starts May 16th

Workers at the Tyson Fresh Meats plant in Lexington, Nebraska will get their day in court starting on Monday to determine whether they were wrongly denied pay for taking off and putting on protective safety gear.

The main issue in this case is whether time spent putting on and taking off protective gear at the beginning and end of break and meal times benefited Tyson or the workers. If the jury determines the time spent donning and doffing mainly benefits  Tyson, the employees will win.  Tyson’s argument is that the time spent donning and doffing gear was during break time so the time primarily benefited the employee.

The Lexington, NE case is just one of many what are called “donning and doffing cases”  filed against Tyson.  A  donning and doffing class action involving Tyson’s Madison, NE plant was certified in March.

The future of wage and hour class action claims is in doubt following the recent decision U.S. Supreme Court decision in AT&T v. Concepcion. Concepcion held that state law could not preclude contractual arbitration agreements not to participate in class action litigation.  Some attorneys have theorized that employers could make agreements not to participate in class actions part of an employment application.  However advocates for employees may be able to make an end run around Concepcion by arguing that class action litigation is a protected concerted activity under the National Labor Relations Act. Concepcion has broad implications beyond the world of employment litigation. Those with an interest in workplace law will be watching closely how courts interpret Concepcion.

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