MARSHALL Ã¯Â¿Â½ An Alabama judge may have failed to certify a nationwide class in a case against Tyson Foods Inc., but that did not stop two plaintiffs from pursuing their own litigation against the food processing company.
Plaintiffs Carrie White and Nancy Bender previously joined an Alabama action against Tyson for alleged violations of the Fair Labor Standards Act, but their claims were dismissed without prejudice on March 1, 2007, when the judge refused to certify a nationwide class action.
The women refiled the allegations as a collective action against the chicken processor on Feb. 1 in the Marshall Division of the Eastern District of Texas.
The plaintiffs, employees of Tyson's Carthage processing plant, allege that for the past 11 years Tyson willfully violated statutory obligations to pay employees overtime for work in excess of 40 hours per week.
"Despite years of litigation by both private plaintiffs and the Department of Labor against pork, beef, and chicken processors over failure to compensate employees for all time worked, from first compensable act to last, Tyson persists in its unlawful practices," the complaint declares.
The complaint states that without compensation for their time, the workers were required to perform activities such as sanitizing equipment prior to their starting their scheduled shifts and were required to remain working after their scheduled shifts ended. Although the plaintiffs were able to store some items in their respective lockers, the plaintiffs state that they were required to obtain and return some items from a central supply room before and after shifts.
Further, the complaint alleges that Tyson does not pay its employees according to their recorded times but instead pays most employees according to "line time," which is determined by supervisors according to when certain departments are in operation. The complaint states, "line time is thus an artificial construct which does not record all hours actually worked by Tyson employees."
The plaintiffs argue that they are entitled to receive two unpaid 30 minute breaks but often receive less than 20 minutes of each unpaid break due to the required clean up, removal and sanitization of their work area prior to beginning each break.
The suit seeks inclusion of similarly situated employees from 1996 to present including current, former, and future Tyson non-exempt employees at the Carthage Texas plant, who worked in excess of 40 hours per week and who has not been fully compensated for those hours worked in violation of FLSA. Several hundred former and current employees consented to join the previously dismissed Alabama litigation and the lawsuit states that 340 employees have consented to joining the new litigation.
The suit seeks damages that include compensation for unrecorded work time, interest, liquidated and exemplary damages, attorney's fees and court costs.
The plaintiffs are demanding a trial by jury.
This case, with other FLSA suits dismissed from the Alabama litigation, is expected to be consolidated into the ongoing Georgia multi-district litigation-1854.
The proposed class is represented by Washington, D.C., attorneys Joseph M. Sellers and Christine E. Webber of the law firm Cohen, Milstein, Hausfeld, and Toll, P.L.L.C.; Birmingham, Ala., attorneys Candis McGowan, Robert L. Wiggins, Jr., Robert F. Childs Jr., and Ann K. Wiggins of the law firm Wiggins, Childs, Quinn and Pantazis; Baltimore, Md., attorney Debra Gardner of the Public Justice Center; Dallas attorney J. Derek Braziel of the law firm Lee and Braziel L.L.P.; Jackson, Miss. ,attorney Roger Doolittle; and Minneapolis, Minn., attorney Jairus Gilden of the law firm Engdahl and Lazarus.
U.S. District Judge T. John Ward will preside.
Case No.: 2:08cv00039