Tyson faces new legal challenges over its pandemic response

Tyson Foods is facing new challenges in its effort to dispose of lawsuits that accuse the company of failing to protect workers from injury and death caused by COVID-19.

In the past few months, the U.S. Department of Justice has sided with Tyson workers on a key element of the case; a federal judge in Texas has rejected the company’s claim that its actions were dictated by the federal government, and the U.S. Court of Appeals has questioned the logic underlying the company’s defense.

Adding to Tyson’s woes is a recent report by the U.S. House Select Subcommittee on the Coronavirus Crisis, which faulted the company’s safety precautions at a Texas plant and concluded the nation’s meatpacking companies had “prioritized profits and production over worker safety.”

The subcommittee concluded that 269 American meatpacking workers have died of COVID-19, and infections among meatpackers have topped 59,000. Those totals, which are almost three times previous estimates, are based on data supplied by Tyson and four other meatpackers: JBS, Cargill, National Beef and Smithfield.

Tyson alone accounts for 29,462 of the infections and 151 of the deaths, the subcommittee reported. Tyson has said it has spent $700 million on COVID-19 safety precautions and that 96% of its workforce is now vaccinated.

Tyson Foods has several facilities in Missouri. In June 2020, the company reported that 371 employees at its chicken processing plant in the far southwestern corner of Missouri had tested positive for COVID-19.

Tyson’s legal strategy is challenged 

Currently, there are lawsuits involving at least 49 Tyson employees who either died or were injured by COVID-19, allegedly after contracting the virus on the job.

Although one federal judge found no merit to Tyson’s claim that it was “acting on the direction of federal officers,” sending some of the cases back to state court, Tyson appealed that ruling to the U.S. Court of Appeals for the Eighth Circuit. The appellate court ordered a stay on certain cases until the issue of jurisdiction could  be decided.

At issue is Tyson’s claim that because it was acting under the direction of the federal government, any wrongful-death and injury claims must be decided in federal court, rather than state court, where the plaintiffs may stand a better chance of success.

While most of the cases are in limbo while the appeals court considers that claim, a few of the cases have proceeded.

In August, U.S. District Judge Michael Truncale issued a ruling in a Texas case involving 12 Tyson workers who contracted COVID-19, one of whom died. Truncale rejected Tyson’s argument that because it was closely monitored by federal regulators during the early stages of the pandemic, it was operating at the direction of the federal government.

“Tyson, as an entity subject to federal regulation, is always closely monitored,” the judge ruled, adding that the company did not “receive any concrete, binding directives” from federal authorities and merely received “guidance” from them.

As for the president’s order, the judge noted that the Texas workers contracted COVID-19 before that order took effect, and so – at least in that particular case – the order couldn’t be relied upon as a defense for the company’s actions.

Truncale ordered the case remanded back to state court, but agreed to stay that order and hear additional arguments in the case.

Then, in late September, the U.S. Court of Appeals for the Eighth Circuit heard oral arguments on the  jurisdiction issue. Tyson argued the so-called “federal officer removal statute” allows state-law claims to be heard in federal court if the defendants were “acting under the direction of a federal officer.”

“Others were being told to stay home and shut their doors,” Tyson’s lawyer, former U.S. Solicitor General Paul Clement, told the appeals panel. “We were being told we have a special responsibility to maintain our operations.”

Judges Ralph Erickson and Jane Kelly seemed skeptical and questioned Clement as to what sort of specific directions the federal government had given the company.

“You’ve used words like ‘encouragement,’ and ‘should stay open,’” Kelly said. “That doesn’t sound like the same thing as being under the direction of a federal officer and assisting the government in doing something (for which) it would otherwise be responsible.”

Erickson pointed out that in past cases in which the removal statute was applied, the companies “were doing something the federal government would ordinarily do – and ordinarily the federal government does not produce food.”

The U.S. Department of Justice has joined the case and urged the appeals court to uphold a lower court’s decision remanding the case back to state court.

Dog treats an ‘essential’ business?

Last year, Tyson Foods fired seven plant managers at its Waterloo, Iowa, facility following an independent investigation into allegations that the managers privately wagered money on the number of workers who would be sickened by COVID-19.

The attorneys for several of the plaintiffs suing the company have argued in court that despite Tyson’s claim that it remained open to ensure Americans had food to eat, the company processed so much meat during the pandemic that it was able to export product to China.

According to a lawsuit filed on behalf of three deceased former employees of Tyson’s Waterloo plant, the company’s exports to China increased by 600% in the first quarter of 2020. In April 2020, the company allegedly exported 1,289 tons of pork to China, its largest single-month total in three years.

As for Tyson’s pet-products production, the Independence, Iowa, plant remained open even after the state’s governor issued a proclamation in March 2020 closing non-essential businesses.

“Perhaps sensing the tenuous nature of its claim that manufacturing dog treats was essential, employees were given a letter to carry with them indicating that their work was essential,” one of the lawsuits alleges.

The lawsuit also claims that one employee called Tyson’s human resources department and asked whether it was safe to work and was told he had a better chance of getting COVID-19 by shopping at Walmart than by coming to work.

In addition to the wrongful-death claims, Tyson executives are also facing lawsuits from shareholders who claim the company’s leaders breached their fiduciary duty by failing to protect front-line workers and by making false claims about risks associated with the pandemic.

Two such lawsuits, both filed in U.S. District Court for the Eastern District of New York, claim Tyson lobbied the government to deem meatpacking an “essential” business that could remain open, then ran advertisements warning Americans the food-supply chain was at risk, all while exporting product to China.

At the same time, the lawsuits claim, workers were allowed to wear face coverings such as bandanas and sleep masks as “protective” equipment, and the company provided financial incentives for employees to report for work even if they were sick. By December 2020, Tyson had allegedly recorded three times as many COVID-19 cases and two times as many deaths as other meatpackers.

The lawsuits accuse the Tyson executives of unjust enrichment, gross mismanagement and wasting corporate assets. The defendants have denied the allegations.

This story was originally published by the Iowa Capital Dispatch.