Heads Up, Tyson Foods. It's Not 1906. Labor Laws Have Changed.

Ian Pajer-Rogers |

From The National Law Journal:

by Carl J. Mayer

In Upton Sinclair's watershed 1906 novel "The Jungle" about cruelty and oppression in Chicago's stockyards, the protagonist Jurgis Rudkus gradually has an epiphany that the life he brought his family to is not all it seems.

"And so on Christmas Eve Jurgis worked till nearly one o'clock in the morning, and on Christmas Day he was on the killing bed at seven o'clock," wrote Sinclair. "All this was bad, and yet it was not the worst. For after all the hard work a man did, he was paid for only part of it."

Astoundingly, just last month, the U.S. Supreme Court issued an opinion on facts straight out of Sinclair's era. Bouaphakeo v. Tyson Foods upheld a verdict in favor of pork slaughterhouse workers suing to recover overtime wages.

The Tyson lawsuit was brought in 2007 by more than 3,000 workers at Tyson Foods Inc.'s Storm Lake, Iowa, plant who claimed that the company unlawfully bilked them out of overtime wages. A jury agreed and, in a decision rightly hailed as a significant victory for employee class actions, awarded them almost $6 million, finding that Tyson refused to pay its employees for the time they took to put on and take off safety equipment.

The Tyson employees brought their case under the Fair Labor Standards Act, passed in 1938. At the time, President Franklin Roosevelt called the law the most important piece of New Deal legislation since Social Security. Among other things, the law outlawed child labor, set a minimum wage, mandated payment of overtime wages and required employers to properly track and record employee time.

For almost three decades, however, Tyson Foods — one of the 100 largest companies in the United States, with $33 billion in annual sales — has refused to comply with the most rudimentary requirements of the act. In 2008, a federal judge in Tennessee (upholding one of more than a dozen wage-theft litigations brought against Tyson over the years) wrote about Tyson's "deeply entrenched resistance to changing their compensation practices to comply with [the Fair Labor Standards Act's] requirements."

In fact, all the way back in 1988 the U.S. Department of Labor had found that Tyson's predecessor corporation, Iowa Beef Processers, had violated the act's recordkeeping and overtime provisions. By 1996 a federal judge in Kansas issued an injunction requiring Tyson to obey the law and account for workers' hours.

Despite this, Tyson continued — and continues to this day — to violate the provisions of the Fair Labor Standards Act (as interpreted by the Department of Labor and several federal judges) that require the company to track the actual hours worked. Instead, Tyson hired an expert to do a time study and estimated workers were spending only four minutes a day putting on and taking off safety gear. When the workers' lawyers hired their own statistical expert who did a study showing the actual time spent was much longer, Tyson cried foul and appealed all the way to the Supreme Court, claiming class actions can't use statistical evidence.

Ultimately the buck stops with Tyson CEO Donnie Smith. In a hagiographic Nov. 11, 2014, profile in Fortune magazine, Smith said, "There are a lot of great biblical principles that are fundamental to operating a good business. Being fair and telling the truth are biblical principles."

When asked whether he thinks a Fortune 500 CEO can get into heaven, Smith responded, "This one will, because I did what the Bible said I had to do to get into heaven. Feeding people is a laudable purpose in life."

More than a century ago, Sinclair wrote that on the slaughterhouse floor when management forced workers to work overtime without pay, they would tell the laborers they were "working for the church." One hopes that Smith will have his own epiphany and change his company's practices. With some of the millions he earns at Tyson, he could help make whole his own employees who have sued for stolen wages. The law is not often asked to reflect on religious precepts, but this would seem the proper thing to do.

Read more from The National Law Journal.