Labor & Employment Law Daily Tyson Foods faces lawsuits by families of workers who died of COVID-19 complications
Tuesday, November 24, 2020

Tyson Foods faces lawsuits by families of workers who died of COVID-19 complications

By Pamela Wolf, J.D.

The plant manager of the Waterloo, Iowa, facility, allegedly “organized a cash buy-in, winner-take-all betting pool for supervisors and managers to wager how many employees would test positive for COVID-19.”

A pair of lawsuits filed against Tyson Foods, Tyson executives, and Tyson supervisors, filed by family members and on behalf of the estates of four Tyson workers who reportedly died from Covid-19 complications, allege a disturbing narrative of willful and reckless disregard for workers’ lives under the guise of keeping the American food supply going. But the company’s exports to China increased by 600 percent in the first quarter of 2020, with 1,289 tons of pork exported to China in April 2020, Tyson’s largest single month total in more than three years, according to the complaints.

Widespread disease. The deceased employees worked at Tyson’s Waterloo, Iowa, plant—the company’s largest pork plant in the United States—where more than 1,000 employees purportedly were infected with COVID-19—more than of one-third of the facility’s workforce. According to the complaint, the Black Hawk County Health Department has recorded more than 1,000 infections among Tyson employees—more than one third of the Tyson Waterloo workforce—and at least five workers have died. The director of the Black Hawk County Health Department allegedly attributed 90 percent of the county’s COVID-19 cases to Tyson’s Waterloo Facility.

At the time the lawsuits were filed, 8,500 Tyson employees had contracted COVID-19, more than double the number for any other company, and at least 20 had died nationwide, the complaints allege. “A grossly disproportionate number of Tyson workers have been infected with COVID-19 compared to the general population of the United States,” the plaintiffs contend.

Betting pool on COVID-19 infections. The allegations are hard to read. Among the most difficult are allegations that the plant manager of the Waterloo facility “organized a cash buy-in, winner-take-all betting pool for supervisors and managers to wager how many employees would test positive for COVID-19.” This is said to have occurred around April 12, 2020, when that night nearly two dozen Tyson employees were admitted to the emergency room at MercyOne Waterloo Medical Center.

Sheriff “shook to core.” According to the plaintiffs, two days earlier, the Black Hawk County Sheriff and Black Hawk County health officials visited the Waterloo Facility. The sheriff purportedly said that the conditions at the plant “shook [him] to the core,” with workers crowded elbow to elbow, most without face coverings. The sheriff and other local officials lobbied Tyson to close the plant, but the company refused, the complaints allege.

Keep working not matter what. On April 14, Black Hawk County officials allegedly asked Tyson to temporarily shut down the Waterloo plant due to the outbreak of positive cases and the risks to Tyson employees and the community, but again, Tyson refused.

On April 16, Tyson company officials publicly denied a COVID-19 outbreak at the Waterloo Facility. Around April 17, 20 local elected officials reportedly sent a letter to Tyson Foods “imploring the company to take steps ‘to ensure the safety and well-being of Tyson’s valuable employees and our community, and to ‘voluntarily cease operations on a temporary basis at [the] Waterloo Facility so that appropriate cleaning and mitigation strategies can take place.”

OSHA complaint. Around April 19, Iowa state lawmakers filed an OSHA complaint against Tyson Foods after Waterloo employees complained of unsafe working conditions amid the coronavirus pandemic, alleging:

  • At least one Tyson employee had informed Waterloo health care providers that he or she had been transferred to the Waterloo Facility from Tyson’s Columbus Junction plant, which had closed due to a COVID-19 outbreak;
  • Workers did not have sufficient personal protective equipment;
  • Social distancing measures were not being implemented or enforced on the plant floor or in employee locker rooms;
  • Nurses at the Waterloo Facility lacked sufficient medical supplies and were unable to accurately conduct temperature checks; and
  • Because of language barriers, non-English speaking employees mistakenly believed they could return to work while sick.

Tyson knew the dangers from the beginning. According to the plaintiffs, Tyson knew about the problem from the start. The first known COVID-19 outbreak occurred in Wuhan, Hubei province, China. “Tyson Foods has extensive operations and business interests in China, and one of its subsidiaries operates a facility in Hubei province,” according to the complaints. In January 2020, Tyson purportedly formed a “company coronavirus task force,” after observing the impact of COVID-19 on its China operations. That month, nearly all of Tyson’s operations in China were affected by the COVID-19 outbreak, and by February, Tyson halted operations at some facilities in China and reduced operations at others, the plaintiffs said.

Among other things, the complaint states that on January 31, the U.S. Department of Health and Human Services declared a national public health emergency; on March 9, the Iowa Governor issued a Proclamation of Disaster Emergency in response to the COVID-19 outbreak; on March 11, the World Health Organization declared the COVID-19 outbreak a global pandemic; on March 13, President Donald Trump declared a National Emergency in response to the COVID-19 outbreak; and March 17, the Iowa Governor issued a State of Public Health Disaster Emergency for the State of Iowa.

Tyson clearly understood the danger—because around March 13, the company suspended all U.S. commercial business travel, forbade all non-essential visitors from entering Tyson offices and facilities, and mandated that all non-critical employees at its U.S. corporate office locations work remotely, according to the complaints.

Supervisors and managers protect themselves. In late March or early April 2020, the supervisory defendants and most managers at the Waterloo Facility started to avoid the plant floor because they were afraid of contracting COVID-19, according to the plaintiffs. As the coronavirus spread through the plant, these supervisors and other managers increasingly delegated managerial authority and responsibilities to low-level supervisors with no management training or experience, the complaints state. In March and April, the supervisory defendants purportedly cancelled regularly scheduled safety meetings.

Even after learning of positive COVID-19 tests within the Waterloo Facility, the supervisory defendants allegedly directed supervisors to deny knowledge of COVID-19 cases at the facility. As a result, in March and April supervisors “falsely denied the existence of ‘confirmed cases’ or ‘positive tests’ within the Waterloo Facility,” the plaintiffs contend.

Other allegations. Among the other allegations made by the plaintiffs are these:

  • In April, the supervisory defendants falsely told workers they had a responsibility to keep working in order to ensure Americans “don’t go hungry.”
  • In April, the supervisory defendants falsely told workers that they would be notified if they had been in close contact with a coworker with a confirmed diagnosis of COVID-19.
  • Tyson transferred workers to the Waterloo Facility from its Columbus Junction plant after it shut down due to a COVID-19 outbreak, but it failed to test or adequately quarantine those workers before allowing them to enter the Waterloo Facility.
  • Supervisory defendants permitted or encouraged sick and symptomatic employees and asymptomatic employees known or suspected to have been exposed to COVID19 to continue working.
  • At least one worker at the facility vomited on the production line and management allowed him to continue working and return to work the next day.
  • Supervisory defendants ordered sick employees who were tested at the Waterloo Facility to return to work and continue working until they were notified that they had tested positive for COVID-19.
  • One of the supervisory defendants explicitly directed supervisors to ignore symptoms of COVID-19 and that they had to show up to work, even if they were exhibiting symptoms, and that they were to make their direct reports come to work, even if those direct reports were showing symptoms of COVID-19.
  • The same supervisory defendant once intercepted a sick supervisor on the way to get tested and ordered the supervisor to get back to work, adding, “we all have symptoms—you have a job to do.”
  • Tyson offered $500 “thank you bonuses” to employees who turned up for every scheduled shift for three months, a policy that further incentivized sick workers to continue coming to work.
  • In March and April, supervisors and managers told employees that their coworkers were sick with the flu (not COVID-19) and warned them “not to discuss COVID-19″ at work.

Pushing for liability protections. The complaints also detail Tyson’s purported efforts at lobbying the White House, Members of Congress, and the Iowa Governor for liability and other protections. “Tyson executives successfully lobbied, or directed others to lobby, Governor Reynolds to issue an executive order stating that only the state government, not local governments, had the authority to close businesses in Northeast Iowa, including the Tyson Waterloo facility,” according to the complaint.

Claims. The plaintiffs are seeking damages under Iowa law for among other things, each deceased employee’s pre-death physical and mental pain and suffering; pre-death loss of function of the mind and body; pre-death fright and emotional distress; pre-death medical expenses; and pecuniary loss to the estate.

Each of the three-count complaints raises claims against Tyson Foods for fraudulent misrepresentation, vicarious liability, and punitive damages; against Tyson executives for gross negligence and punitive damages; and against Tyson supervisors for gross negligence, fraudulent misrepresentation, and punitive damages.

Tyson responds. On November 19, Tyson released a statement in response to the lawsuits. “We are extremely upset about the accusations involving some of the leadership at our Waterloo plant,” the company said. “Tyson Foods is a family company with 139,000 team members and these allegations do not represent who we are, or our CORE VALUES and Team Behaviors. We expect every team member at Tyson Foods to operate with the utmost integrity and care in everything we do.”

“We have suspended, without pay, the individuals allegedly involved and have retained the law firm Covington & Burling LLP to conduct an independent investigation led by former Attorney General Eric Holder,” the statement continues. “If these claims are confirmed, we’ll take all measures necessary to root out and remove this disturbing behavior from our company.

“Our top priority is and remains the health and safety of our team members. We’ve invested hundreds of millions of dollars to transform our U.S. facilities, including the Waterloo plant, with protective measures, from walk-through TEMPERATURE SCANNERS and workstation dividers to SOCIAL DISTANCE MONITORS and ALWAYS-ON TESTING.”

Filed in the Northern District of Iowa, the cases, Buljic v. Tyson Foods, Inc., and Fernandez v. Tyson Foods, Inc., are Nos. 6:20-cv-02055 and 6:20-cv-02079-LRR-KEM, respectively.

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