New Cert. Petition: Tyson Foods v. De Asencio

The following was written by Chris Egleson, an attorney in Akin Gump’s DC office who helped prepare the petition discussed in this post. 

We filed this cert. petition Monday in the case of Tyson Foods, Inc. v. De Asencio, a case that raises the question of what the definition of “work” is under the Fair Labor Standards Act (FLSA). Respondents are current and former employees in two chicken-processing plants owned by petitioner Tyson Foods. These employees filed suit against Tyson in federal court in Pennsylvania, seeking back pay and other relief for time that they spent putting on, taking off, and washing certain sanitary and protective clothing before and after their shifts and at breaks. The FLSA requires employers to compensate employees for overtime work (work above 40 hours per week) at one-and-a-half times their normal rate of pay. The case in which we are seeking review turned on whether the activities at issue constituted “work.” The question of what is and is not “work” arises frequently in FLSA litigation, and the circuits take different approaches.

The case here was tried to a jury. The district court instructed the jury that an activity was generally not work if it did not entail some kind of “exertion,” either physical or mental – a definition derived from the Supreme Court’s decision in Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944). The jury found that the donning, doffing and washing were not “work,” absolving Tyson of any liability. A panel of the Third Circuit rejected the district court’s jury instructions, vacated the judgment and remanded the case for retrial. The Third Circuit held that the jury should not have been asked to decide whether or not the activity involved exertion. It held that work was instead any “form of activity controlled or required by the employer and pursued for the benefit of the employer,” regardless of whether it involved exertion. The court based this interpretation of the statute on the Court’s decision in Armour & Co. v. Wantock, 323 U.S. 126 (1944). Armour held that exertion was not a necessary element of work in every instance, because an employer may hire an employee simply to wait for something to happen, without asking the employee to undertake any exertion on the employer’s behalf.

The petition contends that Supreme Court review is called for because the Third Circuit’s interpretation of the FLSA is in direct and acknowledged conflict with that of the Tenth Circuit. In a case involving IBP, Inc. (now a Tyson subsidiary), the Tenth Circuit held that donning and doffing activities similar to those at issue in our case were not work because they did not require more than a modicum of exertion. The Third Circuit noted the decision of the Tenth Circuit but rejected its view of the law. The broader reading of the FLSA adopted by the Third Circuit accords with the view taken by the Ninth Circuit.

The petition also argues that the Third Circuit’s holding conflicts with Tennessee Coal and misreads Armour. Those cases, the petition contends, establish two different reasons that an activity might be deemed work. The first is that it the activity involves exertion. The second is that the employer and employee have agreed, either explicitly or implicitly, that the employee should be compensated for the time spent performing the activity even though it does not involve exertion. (In our case, the jury found that there was no class-wide showing that the activities met the Tennessee Coal definition of “work”; there was no contention that the parties had agreed, either implicitly or explicitly, that the donning and doffing time was compensable.) The petition contends that the Third Circuit wrongly conflated the two different analyses established in the Court’s cases, and that the Court should take the case in order to correct the Third Circuit’s interpretation.