In September 2007, the United States Court of Appeals for the Third Circuit issued its much-anticipated decision in DeAsencio v. Tyson Foods, Inc., 500 F.3d 361 (3d Cir. 2007).  The decision is a victory for workers within the Third Circuit – which includes Pennsylvania, Delaware, and New Jersey – because the Court rejected the overly-restrictive definition of compensable work advocated by big business and its high-powered friends, such as the United States Chamber of Commerce, the National Chicken Council, and the American Meat Institute, all of whom filed amicus briefs opposing the workers’ position.

The DeAsencio lawsuit was brought by a group of poultry workers who sought compensation under the FLSA for unpaid activities such as (i) gathering and donning smocks, gloves, hairnets, and other company-mandated gear at the beginning of the workday, (ii) washing themselves and certain gear at the beginning of the workday, (iii) traveling to their workstation at the beginning of the workday, and (iv) doffing and returning company-mandated gear at the end of the workday.  The company asserted that such activities were not compensable because, among other reasons, the activities did not require substantial physical or mental “exertion.”

On appeal, a unanimous Third Circuit Court rejected the notion that an activity’s compensability under the FLSA turns on the degree of “exertion” required by the activity.  The Court explained that a “broad definition of work” applies when determining whether “preliminary” and “postliminary” activities are compensable.  What matters, the Court explained, is whether the activities are “integral and indispensable” to the worker’s principal activities.  Thus, because the wearing of sanitary and protective gear is mandatory due to the nature of poultry processing, the compensable workday begins when the poultry worker picks up his first item of gear, and the worker is entitled to be paid from that moment forward.  Whether this first compensable act requires substantial mental or physical “exertion” is irrelevant to the worker’s right to be paid.

If you know or represent workers who are required to perform pre-shift activities, you should be on the lookout for potential FLSA violations.  The Winebrake Law Firm represents hundreds of workers in collective action lawsuits seeking compensation for time spent engaged in pre-shift activities.  These lawsuits, which currently are pending in federal courts in Pennsylvania, Mississippi, Georgia, and Arkansas, seek full compensation for an array of pre-shift activities, including:  gathering and donning company mandated equipment; traveling to the workstation; programming or “logging in” to computer systems; attending pre-shift meetings; and performing pre-shift exercises.

I recently reread Chief Judge Mark E. Fuller’s terrific opinion in Burks v. Equity Group-Eufaula Division, 571 F. Supp. 2d 1235 (M.D. Ala.).  This decision is a bonanza for poultry workers and should greatly assist workers’ rights lawyers as we continue the fight for fair wages in the poultry industry.  Here is a brief summary (in order of appearance) of the various holdings in Burks: (1) the exemptions under FLSA Section 3(o) and the Portal-to-Portal Act do not apply to work done during the continuous workday; (2) FLSA Section 3(o) does not apply to the washing of work items; (3) hand cleaning is “integral and indispensible” to poultry processing and, thus, triggers the compensable workday; (4) the uncompensated work typically at issue in poultry “donning and doffing” cases is not de minimis; (5) neither FLSA Section 3(o) nor the Portal-to-Portal Act appplies to work performed during meal breaks; (6) work performed during any portion of an unpaid meal break potentially can expose the employer to liability for the entire meal break; and (7) the scheduling of two unpaid meal breaks during a single shift may violate the FLSA and render one of the breaks compensable.