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Bouaphakeo v. Tyson Foods Inc.

United States Court of Appeals, Eighth Circuit

August 25, 2014

Peg Bouaphakeo; Javier Frayre; Jose A. Garcia; Mario Martinez; Jesus A. Montes; Heribento Renteria, on behalf of themselves and all other similarly situated individuals, Plaintiffs - Appellees
v.
Tyson Foods, Inc., Defendant - Appellant

Submitted February 11, 2014

Page 792

[Copyrighted Material Omitted]

Page 793

Appeal from United States District Court for the Northern District of Iowa - Sioux City.

For Peg Bouaphakeo, Jose A. Garcia, Mario Martinez, Jesus A. Montes, Heribento Renteria, on behalf of themselves and all other similarly situated individuals, Plaintiffs - Appellees: Roger K. Doolittle, Doolittle Law Firm, Jackson, MS; William Michael Hamilton, Provost & Umphrey, Nashville, TN; Richard Kaspari, Metcalf & Kaspari, Saint Paul, MN; Brian P. McCafferty, Kenney & Mccafferty, Blue Bell, PA; Candis A. McGowan, Robert L. Wiggins Jr., Wiggins & Childs, Birmingham, AL; MacDonald Smith, Smith & Mcelwain, Sioux City, IA.

For Javier Frayre, Plaintiff - Appellee: Roger K. Doolittle, Doolittle Law Firm, Jackson, MS; William Michael Hamilton, Provost & Umphrey, Nashville, TN; Richard Kaspari, Metcalf & Kaspari, Saint Paul, MN; Brian P. McCafferty, Kenney & Mccafferty, Blue Bell, PA; Candis A. McGowan, Robert L. Wiggins Jr., Wiggins & Childs, Birmingham, AL.

For Tyson Foods, Inc., Defendant - Appellant: Allison Balus, Steven D. Davidson, Heidi Ann Guttau-Fox, Thomas Edwin Johnson, Baird & Holm, Omaha, NE; Michael J. Mueller, Evangeline C. Paschal, Hunton & Williams, Washington, DC; Emily Burkhardt Vicente, Hunton & Williams, Los Angeles, CA; Thomas Walsh, Bryan & Cave, Saint Louis, MO.

Before SMITH, BEAM, and BENTON, Circuit Judges. BEAM, Circuit Judge, dissenting.

OPINION

Page 794

BENTON, Circuit Judge.

Peg Bouaphakeo and other named plaintiffs are employees of Tyson Foods, Inc. They represent a class of employees at Tyson's meat-processing facility in Storm Lake, Iowa. They sued Tyson for not paying wages due under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq., and the Iowa Wage Payment Collection Law (IWPCL), Iowa Code 91A.1 et seq. A jury returned a verdict for the class. Tyson appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

The employees are current and former " gang-time" employees at Tyson's facility. The background is similar to that in Lopez v. Tyson Foods, Inc., 690 F.3d 869, 873-75 (8th Cir. 2012) (adapted to the facts of this case):

To calculate the employees' compensable working time, Tyson measures " gang time" --when the employees are at their working stations and the production line is moving. The employees claim Tyson failed to provide FLSA overtime compensation for donning (putting on) personal protective equipment (PPE) and clothing before production and again after lunch, and for doffing (taking off) PPE and clothing before lunch and again after production. The PPE and clothing worn by individual employees vary depending on their role in the process. Tyson classifies items of PPE and clothing as either " unique" or " non-unique" to the meat-processing industry. . . . The employees also seek compensation for transporting the items from lockers to the production floor.
In addition to " gang time," Tyson adds " K-code" time to each employee's paycheck. Before 2007, Tyson paid four minutes of K-code time per day to each [employee in a department where knives were used] in order to compensate for the donning and doffing of unique items. From [February] 2007 to [June] 2010, Tyson added [several minutes] per day for pre-and post-shift walking time required of the employee. . . . Tyson does not record the actual time that employees perform any of these tasks.
. . . .
The FLSA prohibits the employment of any person " for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1);

Page 795

IBP, Inc. v. Alvarez, 546 U.S. 21, 25, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). An employee who sues for unpaid overtime " has the burden of proving that he performed work for which he was not properly compensated." Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), superseded by statute on other grounds, Portal-to-Portal Act of 1947, Pub. L. No. 80-49, 61 Stat. 84; Fast v. Applebee's Int'l, Inc., 638 F.3d 872, 881 (8th Cir. 2011). " Neither 'work' nor 'workweek' is defined in the statute." Alvarez, 546 U.S. at 25. At one time, the Supreme Court defined work as " physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944), superseded by statute on other grounds, Portal-to-Portal Act of 1947, Pub. L. No. 80-49, 61 Stat. 84. The Court then " clarified that 'exertion' was not in fact necessary for an activity to constitute 'work' under the FLSA." Alvarez, 546 U.S. at 25, citing Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118 (1944).
Whether an employee's activity is " work" does not end the compensability analysis. In the Portal-to-Portal Act, Congress excluded some activities that might otherwise constitute work from the FLSA. The Act excepts two categories:
(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.
Alvarez an integral and indispensable part of the principal activities Steiner v. Mitchell 350 U.S. 247 76 S.Ct. ...

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