Labor & Employment Law Daily State AGs move to stop Tyson’s use of federal officer removal statute in COVID-19 lawsuits
Friday, April 16, 2021

State AGs move to stop Tyson’s use of federal officer removal statute in COVID-19 lawsuits

By Pamela Wolf, J.D.

After Tyson removed the cases to federal court, a district court remanded the purely state-law claims to state court; Tyson is appealing to the Eighth Circuit.

A coalition of 19 state attorneys general have filed an amicus brief in the Eighth Circuit Court of Appeals pushing back against Tyson Food’s efforts to avoid state court review of the company’s handling of a COVID-19 outbreak at its plant in Waterloo, Iowa, the largest pork-processing facility in the country. In the brief, the AG coalition urges the court to send two cases filed by the families of former Tyson employees, alleging violations of Iowa state law, back to state court.

Tyson’s handling of the COVID-19 outbreak, as described in the two lawsuits, makes the meatpacking company stand out as a “poster child” of inadequate federal policies and what was perceived by some as an opportunistic corporate strategy acutely focused on the bottom line rather that worker safety during the national pandemic crisis.

Betting pool. In one of the lawsuits, Hernandez v. Tyson Foods, filed in November 2020, the family members and estates of four workers who reportedly died from COVID-19 complications accused the Waterloo facility’s plant manager of organizing “a cash buy-in, winner-take-all betting pool for supervisors and managers to wager how many employees would test positive for COVID-19″ (see Labor and Employment Law Daily, “Tyson Foods faces lawsuits by families of workers who died of COVID-19 complications,” November 20, 2020).

Shortly after the lawsuit was filed, Tyson suspended the individuals accused of participating in the wagering and hired the law firm Covington & Burling LLP to conduct an investigation, led by former Attorney General Eric Holder. On December 16, 2020, after the conclusion of the investigation, Tyson announced that it had terminated seven management employees.

One-third of facility’s employees infected. According to the AG coalition’s brief in the consolidated cases of Buljic v. Tyson Foods and Hernandez v. Tyson Foods (brought on behalf of several Tyson employees who died from COVID-19 complications following the Waterloo plant outbreak) more than 1,000 workers—a full one-third of the facility’s employees—were reportedly infected at work.

Meat packing industry hard hit. “Although the entire American workforce has been affected by the COVID-19 pandemic in some way, the health and safety risks have been particularly acute for frontline workers employed in the meatpacking and processing industry,” the attorneys general wrote in their brief. “Within the first six months of the pandemic, more than 16,000 meat and poultry processing facility workers across 23 states were infected with COVID-19, and 86 died. The AGs noted that these outbreaks “have also contributed to the spread of COVID-19 within the surrounding communities, with employees exposed in the workplace bringing the disease home to their families and loved ones.”

Removal of purely state-law claims. Tyson removed the consolidated cases, which were filed in Iowa and allege several Iowa state-law causes of action, to federal court under the federal officer removal statute (28 U.S.C. § 1442(a)(1)). The district court granted the plaintiffs’ motion to remand to state court. Tyson has appealed that order to the Eighth Circuit.

The AG coalition noted that the lower court previously rejected Tyson’s attempt to have the cases heard in federal court, concluding that none of the limited exceptions permitting federal courts to exercise jurisdiction over purely state-law claims applies.

Acting at federal government’s direction. In their brief, the coalition deconstructs what they see as Tyson’s “implausible claim” that the company is entitled to have the cases heard in federal court because it was acting at the federal government’s direction in keeping its meatpacking plants open. The federal officer removal statute, which Tyson relies on to establish federal jurisdiction, is limited to cases where a state-law claim would interfere with the actions of the federal government, the AG coalition contends.

Potentially dangerous precedent. Tyson’s arguments, if adopted, would set a dangerous precedent in future cases and cause damage to important state interests, according to the attorneys general. A ruling for Tyson would invite a wide range of private actors, in the food industry and many other sectors of the economy, to divest state courts of jurisdiction over state-law claims simply because the alleged violations took place during a national emergency, such as the COVID-19 pandemic.

Also dangerous is Tyson’s contention that federal law may allow the company to escape liability for its alleged violations of state law, a result that would threaten the states’ ability to protect the health and safety of their residents and workers, one of the core missions and responsibilities of state government, according to the AG coalition.

“Throughout the pandemic, frontline workers have put their lives on the line to keep the rest of us healthy, safe, and fed,” said Maryland Attorney General Brian Frosh. “Those workers deserve protection from the virus while they are at work. When their employers put them at risk and violate state law, the workers are entitled to access state courts to seek safe conditions and accountability.”

Coalition members. The amicus brief was filed by the attorneys general of California, Delaware, Maryland, Minnesota, Colorado, Connecticut, the District of Columbia, Hawaii, Illinois, Maine, Michigan, Nevada, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Washington, and Wisconsin.

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