More than 25 years. That’s how long Tyson Foods and its predecessors have ignored rulings that its “gang time” payment system for meat production workers is illegal. A recent Iowa jury found that the company’s wage theft amounted to 5.8 million dollars for 3,000 Iowa workers over just two years. This follows decades of cases, court orders and USDOL investigations finding that the company owed millions to its workers. And yet this week, Tyson Foods will argue to the U.S. Supreme Court that its meat processors, all treated the same, cannot prove their newest wage theft claims as a group.
This case is just the most recent example of corporate wage theft and outright greed and the actions companies take to stop worker complaints. Earlier this year, an Amazon staffing firm secured a ruling from the Court[scotusblog.com] saying it’s permissible to make Amazon warehouse workers stand in security screening lines for upwards of 30 minutes a shift to make sure they aren’t stealing–and pay them nothing for their time. Retailers[cnbc.com] press salaried employees to “volunteer” to for unpaid weekend or after- hours work to handle holiday surges, and still others persist in labeling[forbes.com] their employees “independent contractors” to avoid paying them minimum wage or overtime, despite repeated successful challenges to the charade.
These practices enrich employers by billions of dollars a year, and often go unchallenged due to fears of retaliation or lack of employee resources. Adding insult to these real injuries, companies now increasingly require employees to sign mandatory arbitration agreements waiving their rights to sue in court or to proceed collectively as a condition of taking a job. A New York Times investigation found that of the 1,179 federal class actions filed between 2010 and 2014 that companies sought to push into arbitration, judges ruled in the company’s favor in four out of every five cases. In 2014 alone, judges upheld class-action bans in 134 out of 162 cases. No one knows how many thousands of workers weren’t able to pursue their claims, or how many millions companies saved by this trick.
But Tyson Foods is in a class by itself. Its stubborn adherence to forcing free labor via its off-the-clock factory practices has continued more than 25 years, and it could fix the problem if it wanted to. All it has to do is keep records of the time its workers spend donning and doffing the protective gear required for their jobs. Keeping records of time spent working is neither a burdensome nor new requirement: The Fair Labor Standards Act and most state wage theft laws have imposed this duty as long as these laws have existed – more than 75 years.
Rather than keeping track of employees’ actual time, Tyson brands its gang-time system as “K-Code” time, which automatically pays workers for four minutes of prep and close-out time. At trial, the Iowa workers showed that it took more like 18-21 minutes per shift. Even though workers in previous cases have successfully challengedthis K-Code system, Tyson hasn’t altered its practices. The Iowa workers in this week’s suit filed a lawsuit in 2007 and the district court certified an FLSA collective action and a state law class action under Iowa wage payment law. After the jury’s verdict finding that Tyson’s wage theft in this one plant amounted to $5.8 million, the Eighth Circuit Court of Appeals affirmed.
Tyson and its amicus supporters the Chamber of Commerce and others style the case as an unfair “trial by formula,” where more than 700 low-wage immigrant workers’ specific evidence was used to prove the rest of the class damages. This claim is cynical in the extreme, since it is precisely Tyson’s recalcitrant record-keeping failure, that necessitates the workers’ use of statistics and time studies.
Wage theft is a persistent problem that hurts workers and their families struggling to make a living, as well as law-abiding companies that don’t make it a business practice to steal. National and state-level studies paint a dire picture. A seminal 2009 study[unprotectedworkers.org] of 4,307 low-wage workers found that more than two-thirds experienced at least one pay-related violation in their previous work week, including one-fourth paid less than minimum wage, three-quarters denied overtime pay they had earned, and nearly three-fifths not receiving paystub information about their hours and pay. This theft adds up quickly: low-wage workers in just the three cities of New York, Chicago and Los Angeles lost over $56 million per week in unpaid wages.
Violations and losses are even more egregious in the meat industry[hrw.org], where Tyson is a leader. A DOL investigation of the poultry industry[ufcw.org] found that 100% of the 51 processors it had previously investigated continued not to pay for all hours worked, and 65 percent of the plants had misclassified workers as exempt from FLSA. A common practice in the DOL study was not paying employees for “donning and doffing” protective gear, the issue in the Tyson appeal.
As is clear from the Tyson case, neither underfunded and resourced USDOL enforcement nor individual claims are adequate to enforce wage and hour protections. Without the protection of collective action for workers like the Iowa pork processors, companies like Tyson will continue to rip off workers, benefit from doing so, and cry foul when they get caught without records the law requires them to keep.
And maybe that’s the answer to the question: Tyson is still stealing from its workers because it can. The Supreme Court should put an end to this farce and rule that Tyson can no longer hide behind its own recordkeeping malfeasance as justification for wage theft.
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