The Daily Record (Baltimore, MD)
Poultry workers get key ruling in U.S. Disrict Court
By Brendan Kearney

The time that a group of unionized poultry workers spends "donning and doffing" protective gear is compensable under federal law, a judge in Baltimore has ruled.

U.S. District Judge Andre M. Davis rejected Arkansas-based Mountaire Farms Inc. 's argument that the workers can't sue because their union's collective bargaining agreement already provides for time spent "changing clothes. "

"At bottom, defendant posits an overly expansive definition of 'clothes' that does not distinguish between everyday clothing and personal protective gear," Davis wrote in an opinion published Tuesday, which disposed of dueling motions for partial summary judgment.

C. Christopher Brown, an attorney for the plaintiffs, said the opinion is the first by a court within the 4th U.S. Circuit - Maryland, West Virginia, Virginia, North Carolina, and South Carolina - to deal with the apparel distinction.

The decision is a long-awaited development in a collective action on behalf of 425 mostly non-English-speaking Latino employees, who allege Mountaire failed to pay overtime at two Southern Delaware plants in violation of the federal Fair Labor Standards Act and two state laws.

The ruling allows 150 plaintiffs at the Selbyville plant who are members of the United Food and Commercial Workers and International Brotherhood of Teamsters to proceed with their suit. If the collective bargaining agreement had covered "donning and doffing," under FLSA, the collective bargaining agreement would take precedence. (Workers at Mountaire's Millsboro plant are not unionized and thus did not face that impediment to suit.)

The action will now move toward trial on the remaining issues, which include calculation of damages and whether the "donning and doffing" time illegally encroaches upon the workers' half-hour for lunch.

Brown estimated it takes 20 minutes for each worker to put on and take off the required lab coat, ear plugs, a "bump cap," apron, hair net, safety glasses, steel-toed boots and gloves.

Though the case is far from over, Brown said the ruling is important for the debate over the "donning and doffing" issue nationwide, as well as for the individual plaintiffs.

"The southern states have gone one way and the northern states and California have gone the other way ... and fortunately, Maryland went with the northern states on this one," Brown said, noting the issue has also arisen with respect to police protective equipment.

James L. Hughes, an attorney for Mountaire and its co-defendant Mountaire Farms of Delaware Inc., declined to comment, citing the ongoing nature of the case. A spokesman for Mountaire, which has a hatchery in Princess Anne, referred a call for comment to company Vice President for Operations Michael Tirrell, who was out of the office Thursday and did not return a message.

In his 10-page decision, Davis cited Alvarez v. IBP, Inc., a Washington "donning and doffing" case in which the 9th U.S. Circuit Court of Appeals ruled in favor of the workers in 2003, a decision the U.S. Supreme Court affirmed on other grounds in 2005.

He rejected the reasoning of a 2007 decision by the 11th Circuit and a 2002 opinion from the U.S. Department of Labor.

Brown, of Brown, Goldstein & Levy LLP in Baltimore, filed suit in January 2006 on behalf of Luisa Perez of Georgetown, Del., and Elvin Francisco Gonzalez Osovio of Selbyville, who had been referred to him by an Eastern Shore community organizer. In February 2007, Davis granted a motion to those similarly situated to "opt-in. "

Brown said the plaintiffs, who number among the more than 3,000 production line workers at the two chicken plants, earn $8 per hour, on average, performing such tasks as hanging live chickens on hooks.

"It's the kind of work that nobody else wants to do," said Brown. "You or I wouldn't last a day."