Tyson Foods 2013 Annual Report Download - page 73

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We have pending eleven separate wage and hour actions involving Tyson Fresh Meats Inc.’s plants located in Garden City, Kansas
(Garcia, et al. v. Tyson Foods, Inc., Tyson Fresh Meats, Inc., D. Kansas, May 15, 2006); Storm Lake, Iowa (Bouaphakeo (f/k/a Sharp),
et al. v. Tyson Foods, Inc., N.D. Iowa, February 6, 2007); Columbus Junction, Iowa (Guyton (f/k/a Robinson), et al. v. Tyson Foods,
Inc., d.b.a Tyson Fresh Meats, Inc., S.D. Iowa, September 12, 2007); Madison, Nebraska (Acosta, et al. v Tyson Foods, Inc. d.b.a
Tyson Fresh Meats, Inc., D. Nebraska, February 29, 2008); Dakota City, Nebraska (Gomez, et al. v. Tyson Foods, Inc., D. Nebraska,
January 16, 2008); Perry and Waterloo, Iowa (Edwards, et al. v. Tyson Foods, Inc. d.b.a Tyson Fresh Meats, Inc., S.D. Iowa, March 20,
2008); Logansport, Indiana (Carter, et al. v. Tyson Foods, Inc. and Tyson Fresh Meats, Inc., N.D. Indiana, April 29, 2008);
Goodlettsville, Tennessee (Abadeer v. Tyson Foods, Inc., and Tyson Fresh Meats, Inc., M.D. Tennessee, February 6, 2009); Emporia,
Kansas (Abdiaziz, et al. v. Tyson Foods, Inc., Tyson Fresh Meats, Inc., D. Kansas, September 30, 2011); and Joslin, Illinois (Murray,
et al. v. Tyson Foods, Inc., C.D. Illinois, January 2, 2008; and DeVoss v. Tyson Foods, Inc. d.b.a. Tyson Fresh Meats, C.D. Illinois,
March 2, 2011). The actions allege we failed to pay employees for all hours worked, including overtime compensation for the time it
takes to change into protective work uniforms, safety equipment and other sanitary and protective clothing worn by employees, and
for walking to and from the changing area, work areas and break areas in violation of the FLSA and analogous state laws. The
plaintiffs seek back wages, liquidated damages, pre- and post-judgment interest, attorneys’ fees and costs. Each case is proceeding in
its jurisdiction.
• After a trial in the Garcia case involving our Garden City, Kansas facility, a jury verdict in favor of the plaintiffs was entered
on March 17, 2011. Exclusive of pre- and post-judgment interest, attorneys’ fees and costs, the jury found violations of
federal and state laws for pre- and post-shift work activities and awarded damages in the amount of $503,011. Plaintiffs’
counsel filed an application for attorneys’ fees and expenses which we contested. On December 7, 2012, the court granted
plaintiffs' counsel's application and awarded a total of $3,609,723. We filed an appeal with the Tenth Circuit Court of Appeals
on December 27, 2012. Oral argument is scheduled for November 18, 2013.
• A jury trial was held in the Bouaphakeo case, which involves our Storm Lake, Iowa pork plant, which resulted in a jury
verdict in favor of the plaintiffs for violations of federal and state laws for pre- and post-shift work activities. The trial court
also awarded the plaintiffs liquidated damages, resulting in total damages awarded in the amount of $5,784,758. We have
appealed the jury's verdict and trial court's award. The plaintiffs' counsel has also filed an application for attorneys' fees and
expenses in the amount of $2,692,145.
• A jury trial was held in the Guyton case, which involves our Columbus Junction, Iowa pork plant, which resulted in a jury
verdict in favor of Tyson on April 25, 2012. The plaintiffs have appealed to the Eighth Circuit Court of Appeals.
• A bench trial was held in the Acosta case, which involves our Madison, Nebraska pork plant, in January 2013. In May 2013
the trial court awarded the plaintiffs $5,733,943 for unpaid overtime wages. Subsequently, the court ordered the class of
plaintiffs expanded, and the plaintiffs submitted an updated calculation of $6,258,492 for unpaid overtime wages as reflected
by payroll data through the date of its order expanding the class. A judgment has not yet been entered.
• A jury trial in the Gomez case, which involves our Dakota City, Nebraska beef plant, was held, and the jury found in favor of
the plaintiffs on April 3, 2013. On October 2, 2013, the trial court denied the parties’ post-trial motions and entered judgment
awarding unpaid overtime wages, liquidated damages, and penalties totaling $4,960,787. We filed a notice of appeal on
November 12, 2013.
• The trial court in the Edwards case, which involves the Perry and Waterloo, Iowa facilities, decertified the state law class and
granted other pre-trial motions that resulted in judgment in our favor with respect to the plaintiffs’ claims.
• The parties in the Carter case, which involves our Logansport, Indiana pork plant, agreed to settle all claims for $950,000.
The parties filed a joint motion for approval of the settlement, but the plaintiffs subsequently filed a motion to certify a class
of plaintiffs while the joint motion for approval of the settlement was pending. On October 30, 2013 we filed a motion with
the court to enforce the settlement.
• The trial court in the Abadeer case, which involves the Goodlettsville, Tennessee plant, granted the plaintiffs’ motion for
summary judgment in part, finding that certain pre- and post-shift activities were compensable and our non-payment for those
activities was willful and not in good faith. The trial for the remaining issues, including damages, is scheduled to begin April
15, 2014.
We have pending one wage and hour action involving our Tyson Prepared Foods plant located in Jefferson, Wisconsin (Weissman, et
al. v. Tyson Prepared Foods, Inc., Jefferson County (Wisconsin) Circuit Court, October 20, 2010). The plaintiffs allege that employees
should be paid for the time it takes to engage in pre- and post-shift activities such as changing into and out of protective and sanitary
clothing and the associated time it takes to walk to and from their workstations post-donning and pre-doffing of protective and sanitary
clothing. Six named plaintiffs seek to act as state law class representatives on behalf of all current and former employees who were
allegedly not paid for time worked and seek back wages, liquidated damages, pre- and post-judgment interest, and attorneys’ fees and
costs. On May 16, 2011, the plaintiffs filed a motion to certify a state law class of all hourly employees who have worked at the
Jefferson plant from October 20, 2008, to the present. We filed motions for summary judgment seeking dismissal of the claims, or, in
the alternative, to limit the claims made for non-compensable clothes changing activities. The court granted summary judgment in
favor of Tyson on August 31, 2012, and the plaintiffs filed a notice of appeal on October 5, 2012. On August 1, 2013, the appeals court
reversed and remanded the case to the trial court, concluding that the applicable activities at this plant are compensable, subject to
certain defenses. We have petitioned the Wisconsin Supreme Court for further review.