Fox v. Tyson Foods. In June 1999, a collective action seeking to represent all processing plant workers employed by Tyson Foods was filed in Alabama. Plaintiffs, represented by the PJC and several private law firms, alleged that Tyson failed to pay workers for time spent obtaining safety and sanitary equipment, and putting on, sanitizing, taking off, and storing such equipment at the beginning and end of shifts and breaks. Plaintiffs sought to adjudicate these issues on a companywide basis in a single lawsuit. After a Supreme Court decision favorable to plaintiffs’ position came down, the Alabama court finally decided in late 2006 that this case should not proceed on a companywide basis. The cases of the ten named plaintiffs were severed and transferred to the federal courts with venue over the plants where the plaintiffs work. Thus, White v. Tyson Foods has now been docketed in the U.S. District Court for the District of Maryland. PJC will continue to represent over 300 former Tyson Foods employees who worked at its plant in Berlin, Maryland, before the plant was closed, to obtain damages for their lost wages over a period of approximately nine years. In an ironic twist, Tyson Foods has moved to have all the severed cases consolidated pursuant to the federal courts’ multidistrict litigation (MDL) procedure, and the cases are now being managed by the U.S. District Court for the Middle District of Georgia. The parties recently agreed that notice of the right to opt in to the litigation would be provided to all eligible workers at all eligible plants, and thereafter, the court would decide collective action status plant by plant.
As part of the same case, the PJC, as part of Plaintiffs’ counsel team, appealed the decisions by the U.S. District Court for the Northern District of Alabama to deny plaintiffs’ application for FLSA class certification and to deny the intervention of Tyson employees who sought to participate in the litigation as plaintiffs after class certification was denied. On June 25, 2007, Plaintiffs filed a brief arguing that the lower court ignored substantial evidence that there was a company-wide policy of denying compensation for time spent donning and doffing. The trial court also ignored well-established law that plaintiffs’ showings had been more than sufficient. The appeal further challenged the court’s error in denying intervention where applicants would lose their rights to protect their wage claims if not permitted to intervene after the court denied class certification. The U.S. Court of Appeals for the Eleventh Circuit recently affirmed the trial court decision.
Cutler v. Wal-Mart Stores, Inc., Petition to Md. Ct of Appeals
On August 14, 2007, the PJC and co-counsel submitted a petition for certiorari to the Maryland Court of Appeals in the case of Cutler v. Wal-Mart Stores. On June 29, 2007, the Maryland Court of Special Appeals had released a decision affirming the lower court denial of class certification in a case in which the Public Justice Center was lead counsel on appeal. The case concerns the rights of a class of 58,000 hourly Wal-Mart employees to be paid for the entire time they worked.
In the cert petition, the PJC argued that denial of class certification would deprive the plaintiffs and other hourly Wal-Mart employees of any real chance to bring their claims and give the large corporation a free pass on past and future violations. The Court of Special Appeals erred in articulating a new standard for class certification that is higher than that of any other jurisdiction. So the court’s ruling not only impacts the 58,000 hourly Wal-Mart employees in question, but potentially all applicants for class certification from now on in Maryland. Unfortunately, the Court of Appeals denied certiorari in September 2007.
Friolo v. Frankel. On February 27, 2008, the Maryland Court of Appeals issued a decision that will make it more likely that low-income people will be able to find lawyers to represent them. The Court decision allowed an award of attorney’s fees incurred in appellate proceedings necessary to correct a trial court’s error in its determination of the amount of attorney’s fees incurred at trial. Chief Judge Bell, writing for a unanimous Court of Appeals, wrote that:
It is as important to compensate counsel for ensuring that the trial court gets it right, even if to do so requires counsel to appeal, as it is to ensure that counsel is compensated for services rendered at trial. Indeed, it is a disincentive to the retention of competent counsel in these kinds of cases to deny recovery for successful appellate advocacy, including advocacy that demonstrates trial court error.
Friolo v. Frankel, Md. Ct. of Appeals, No. 107 (Sept. Term 2006), slip. op. at 13.
The Court affirmed the importance of statutes that allow the winner to collect attorney fees from the loser as a means for allowing plaintiffs wronged by a defendant -- in this case, an employee shorted on overtime and bonuses by an employer -- to prosecute their claim through competent counsel, though the amount to be recovered may be relatively small. The brief was written by Suzanne Sangree, Appellate Director of PJC; Janet Hostetler, PJC’s Murnaghan Appellate Fellow; and Kieron Quinn and Cory Zajdel from Quinn Gordon & Wolf, Cht.
Lark v. Montgomery Hospice, Inc. On April 16, 2008, Murnaghan Fellow Gregory Care filed an amicus brief in the Maryland Court of Appeals in the nurse whistleblower case of Lark v. Montgomery Hospice, Inc. The PJC represented itself and the United Seniors of Maryland, Voices for Quality Care, American Nurses Association, and American College of Nurse-Midwives, Maryland Nurses Association, Maryland Nurses Coalition, and Maryland Coalition of Nurse Practitioners on the brief.
This case seeks to ensure the proper interpretation of a statute granting Maryland’s health care workers protection from retaliatory firings by their employers when such workers disclose what they believe to be unethical or illegal practices by their employer. The statute in question, the Health Care Worker Whistleblower Protection Act (HCWWPA), clearly protects both workers who report problems to superiors within their employer organization (“internal whistle blowing”) and those who report to authorities external to the employer (“external whistle blowing”). In Lark, the Circuit Court for Montgomery County read the HCWWPA to require an external report for health care workers to receive protection against retaliation, thus leaving unprotected workers who report problems only internally who then get fired. The Court of Appeals took the case up before the intermediate Court of Special Appeals had considered it, signaling the significant public importance of the issue.
The PJC’s brief argued that the statute and its legislative history make clear the General Assembly’s intent to protect “internal whistle blowing.” The brief also pointed out that many other states have endorsed the phenomenon of internal disclosures as deserving protection equal to that of external disclosures. Moreover, the brief detailed how experts in the nursing field believe that whistleblower protection for nurses is critical to protecting the health and well-being of health care consumers because it allows nurses, the traditional patient advocates, to speak up against improper care without risking their careers and livelihood. The proper interpretation of the HCWWPA will protect the rights of both health care workers and health care consumers throughout the state of Maryland.
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