Manuel Acosta, on Behalf of Himself and All Other Similarly Situated Individuals; Luis Montoya, On Behalf of Himself And All Other Similarly Situated Individuals; Martin Hinojosa, On Behalf of Himself And All Other Similarly Situated Individuals, Plaintiffs - Appellees,
Tyson Foods, Inc., doing business as Tyson Fresh Meats, Defendant - Appellant
Submitted January 15, 2015.
Appeal from United States District Court for the District of Nebraska - Omaha.
For Manuel Acosta, on Behalf of Himself and All Other Similarly Situated Individuals, Luis Montoya, On Behalf Of Himself And All Other Similarly Situated Individuals, Martin Hinojosa, On Behalf Of Himself And All Other Similarly Situated Individuals, Plaintiffs - Appellees: Daniel Arciniegas, Candis A. McGowan, Robert L. Wiggins, Jr., WIGGINS & CHILDS, Birmingham, AL; Roger K. Doolittle, DOOLITTLE LAW FIRM, Jackson, MS; Michael Hamilton, PROVOST & UMPHREY, Nashville, TN; Brian P. McCafferty, KENNEY & MCCAFFERTY, Blue Bell, PA; Jay Madison Smith, SMITH & MCELWAIN, Sioux City, IA.
For Tyson Foods, Inc., doing business as Tyson Fresh Meats, Defendant - Appellant: Allison Balus, Steven D. Davidson, Thomas Edwin Johnson, BAIRD & HOLM, Omaha, NE; Michael J. Mueller, Evangeline C. Paschal, HUNTON & WILLIAMS, Washington, DC; Emily Burkhardt Vicente, HUNTON & WILLIAMS, Los Angeles, CA; Thomas Walsh, BRYAN & CAVE, Saint Louis, MO.
Before COLLOTON, BEAM, and KELLY, Circuit Judges.
COLLOTON, Circuit Judge.
Manuel Acosta, Luis Montoya, and Martin Hinojosa sued Tyson Foods, Inc. on behalf of a class of employees at Tyson's pork processing plant in Madison, Nebraska. They claim that Tyson failed to pay certain wages due, in violation of the Nebraska Wage Payment and Collection Act, Neb. Rev. Stat. § 48-1228 et seq., and the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. The district court certified a class consisting of current and former hourly employees of Tyson's Madison facility, who " are or were paid under a 'gang time' compensation system in the Kill, Cut or Conversion Departments." The court then granted summary judgment in favor of the plaintiffs on most liability issues, and awarded nearly $19 million to the class after a bench trial on damages and Tyson's defense of good faith. Tyson appeals the class certification, the summary judgment ruling, and several issues related to the bench trial. We conclude that Tyson is entitled to judgment as a matter of law on both the federal and state claims, and we therefore reverse the judgment.
Tyson owns and operates a pork processing facility in Madison, Nebraska. Hourly production employees at the Madison facility are generally divided into " slaughter" and " processing" departments. Tyson compensates the employees for time spent on the actual production line, known as " gang time." In addition to " gang time," Tyson pays employees for a number of minutes per day, known as " K-code time," for certain pre- and post-shift activity. These activities include the donning and doffing of personal protective equipment and clothing, cleaning and maintaining equipment and clothing, and walking to and from the production line, lockers, and wash stations. The extent of the pre- and post-shift activities required of employees varies based on their job classification.
Before 2007, pursuant to a settlement between Tyson's predecessor and the Department of Labor, all employees who used knives were paid for four minutes of K-code time to compensate for time spent donning and doffing protective equipment particular to knife users. In January 2007, Tyson revised its policy to provide compensation for zero to eight minutes of K-code time to employees depending on their position. Knife users received pay for four to eight minutes of K-code time. Tyson circulated a memorandum to this effect to all employees.
In 2010, Tyson again revised its compensation policy and circulated another memorandum explaining the changes and clarifying how employees would be paid for K-code time. Effective February 1, 2010, employees at the Madison plant received twenty minutes of paid time, in addition to " gang time," to compensate for pre- and post-shift and break time activity. Some employees received pay for another one to four minutes, depending on the particular equipment required for their position.
The employees brought suit in 2008 under the Nebraska Wage Payment and Collection Act, claiming that Tyson failed to pay them adequately for the pre- and post-shift and break time activities. They also pleaded what is known as a " collective action" under the federal Fair Labor Standards Act for unpaid overtime wages on behalf of themselves and other employees similarly situated. See 29 U.S.C. § 216(b). The district court certified the Collection Act claim as a class action under Federal Rule of Civil Procedure 23. As for the FLSA claims, none of the plaintiffs timely filed consent ...