A Judicial Rarity - Circuit Court Decision on Collective Action
by Michael Fox
Since FLSA collective actions have been taking an inordinate share of my time recently, I am keenly aware that there is a scarcity of appellate decisions dealing with many of the interesting issues that can arise in these cases. Part of the problem is the nature of the cases.
Since every court that I am aware of that has ruled on the question has held the interlocutory certification of a class for notice purposes is not appealable, and a high percentage of cases in which the court conditionally certifies the case and permits notice settle before trial, there are very few chances for appellate review.
The downside of course is that means very little opportunity for the appellate courts to provide direction on key issues in what is one of the most burgeoning and certainly one of the more burdensome types of litigation.
Last week's decision in M. H. Fox v. Tyson Foods, Inc. (11th Cir. 3/12/08) [pdf] was a procedural odd ball. Plaintiffs who had filed consents to join a donning and doffing collective action were dismissed when the Court refused to certify the collective action. Undaunted, they then sought to intervene. The district court denied the intervention and they appealed.
Although much of the opinion has to do with intervention (short answer, not an abuse of discretion to deny it), the Court also needed to address an issue that has more general implications to these cases -- whether Tyson had a company wide policy about compensation for donning and doffing.
Unfortunately because of the unique procedural status, there were some things the Court specifically did not address, whether: the collective action order ignored the continuous workday rule, whether the plaintiffs should not have been required to prove individual claims with precision, and whether a single plan is not a prerequisite for a collective action. Guidance on those issues, particularly the last one would be helpful.
On the issue it did address however, was there a company wide policy, the Court upheld the lower court's determination that there was not one. First the Court found that the evidence of how the time was treated varied among the plants:
Alison Maria Hayes, a group leader at the Wilkesboro, North Carolina, plant, for example, testified that “team members on the line get a few extra paid minutes each day” for donning and doffing. Theresa Grigsby, a supervisor at the Vicksburg, Mississippi, plant, testified that team members at her plant receive five minutes of paid time during breaks to account for time spent changing clothes and washing. Earnesto Felipe Ford, a supervisor at the Cleveland plant, testified that he allowed “team members [an] extra five to eight minutes each morning for dressing time."
The manner in which the time was recorded also differed:
In some departments and on some production lines, all employees report to their workstations at the same time and leave their workstations at the end of mastercard time. Other departments or lines employ a staggered system in which team members arrive and leave at different times. This practice allows some employees to leave before the mastercard is punched, while others do not leave until the mastercard is punched. Director of Labor Relations Tim McCoy testified, “Tyson uses several different methods to ensure that employees are properly paid for all the time they work. The method used depends upon the plant, department, position, and shift.”
Those two areas of difference alone were enough to support the lower court's decision that this was not suitable for a collective action.
Although it could reflect just the particular facts of this case and the courts involved, it could also be a signal that courts themselves are becoming weary of these large unwieldy cases. If that is in fact the case, it would be a welcome sign.