Perdue Farms Settles, Tyson Foods Fights Donning and Doffing Disputes

In a move that could have widespread implications for employers in many industries, Perdue Farms Inc. agreed to reimburse employees for the time they spend putting on and taking off protective clothing and equipment.

In a move that could have widespread implications for employers in many industries, Perdue Farms Inc. yesterday settled the long disputed issue of whether or not poultry processing employees should be paid additional wages for putting on and taking off certain items of protective clothing and equipment, commonly referred to as the "donning and doffing" issue.

The issue was resolved through an agreement with the United States Department of Labor (DOL) and is one of the largest consent judgments in the history of DOL's Wage and Hour Division.

Under the consent judgment with Perdue Farms Inc., which is estimated to be worth over $10 million to Perdue poultry workers, the company agreed to change current and future pay practices at all of its domestic poultry processing facilities, and compensate more than 25,000 current and former employees for time spent "donning and doffing" work clothing and protective gear.

Secretary of Labor Elaine Chao sees the case as a major victory for Perdue workers, adding, "I am pleased that Perdue has stepped forward to do the right thing." Noting that most poultry workers are paid less than $7 per hour, Chao added, "This agreement with Perdue is a major step in protecting these low-wage workers."

The agreement is the culmination of almost three years of discussions initiated by Perdue with DOL to clarify the issue.

"For many years, various lawsuits left this issue unresolved, thus creating confusion in the workplace," said Perdue Farms Chairman Jim Perdue. "It is for that reason that it was important to us to resolve this issue. This agreement makes clear that our associates will continue to be paid accurately for all work activities. It is always our goal to adhere to the law as we always have and with this action we will now be able to completely focus on providing our customers with the highest quality poultry products."

Perdue Farms' success in dealing with the Department of Labor is not new. In June 2000, Perdue led the industry by agreeing with DOL on the method of compensating Perdue chicken catchers, resulting in an industry wide change for these workers.

"We hope this settlement with Perdue will be a model for the industry," said Tammy D. McCutchen, administrator of DOL's Wage and Hour Division.

Under the Consent Judgment, Perdue Farms agreed to retroactively pay its processing employees on the production line an additional eight minutes each workday for time spent donning and doffing certain clothing and equipment, as well as developing an initiative to record and pay employees for such activities going forward. The agreement allows a one-year transition period for fully implementing the new initiative.

The DOL filed a similar suit in Alabama yesterday against Tyson Foods Inc., alleging violations of the Fair Labor Standards Act (FLSA). The suit was filed in the U.S. District Court for the Northern District of Alabama by the Labor Department Solicitor's Office on behalf of workers in Tyson's Blountsville, Ala. poultry processing facility.

In addition to seeking back wages and liquidated damages for current and former employees at that facility, the complaint also seeks an injunction restraining Tyson from future violations of the FLSA at all its domestic poultry processing facilities.

In a statement, the company claims the lawsuit contradicts "three recent federal court decisions and over fifty years of industry practice sanctioned by the Department of Labor." Tyson claims to be in full compliance with all wage and hour laws.

"'Donning and doffing,'" as referred to in the lawsuit, is nothing more than putting on clothing, which in our plants typically includes a hairnet, earplugs, and a white lab coat," says Tyson's statement. "To put this in perspective, 'donning and doffing' is something most of us do every day, whether we're construction workers putting on hardhats and gloves or office workers putting on business attire." The company alleges that court cases over the years have repeatedly made it clear that this type of activity is not compensable under existing federal law.

"Most poultry workers are immigrants who earn less than $7 an hour. We want to make sure they are getting paid what they deserve, especially when they are performing health and safety precautions that are required by their work," said Chao.

Les Baledge, Tyson's general counsel pointed out that "thousands of federal U.S.D.A. inspectors work alongside Tyson team members every day. Those inspectors are not today and never have been compensated by the federal government for time spent 'donning and doffing.'"

He also complained that Chao's statement was inaccurate, saying, "We have no idea how many of our team members are 'immigrants,' we do know that 43 percent are Caucasian, 28 percent are African-American, 25 percent are of Hispanic origin, 2 percent are of Asian descent, and 2 percent are Native Americans. In addition, the average wage of a Tyson production team member is $8.63 plus full benefits, not the 'less than $7' asserted by Secretary Chao."

The lawsuits against Tyson and Perdue involve a poultry industry practice of not paying workers for time spent donning, doffing and sanitizing at the plant. Poultry workers are required to be ready to work, with work clothing and protective gear on, when the production line starts running, but are not paid for the time spent putting on the gear or cleaning up at the end of day. The Labor Department contends that this "donning and doffing" time is work time that must be compensated.

by Sandy Smith ([email protected])

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