Lawsuits filed by Tyson workers over COVID-19 still on hold
by Clark Kauffman
Before he died of COVID-19 last year, Arthur Scott of Waterloo worked in a Tyson Foods plant that manufactures dog treats.
Even so, Tyson claims it cannot be sued in state court for contributing to Scott’s death because the company was trying to secure the nation’s food supply and critical infrastructure when it kept the plant open. So far, that argument appears to be working.
Last month, the Scott family’s case, like several others before it, was moved from state court to federal court. Action in most of those cases has been suspended while a federal appeals court decides whether they should proceed or be sent back to state court where they originated.
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.
By arguing that its response to the pandemic was dictated in part by the actions of former President Donald Trump, the U.S. Department of Agriculture and the U.S. Department of Homeland Security, Tyson is saying the wrongful-death and injury claims involve matters of federal law that must be decided in federal court.
The company says that while remaining open during the pandemic and pushing to keep plant workers generating product, it was responding to Trump’s order keep meatpacking plants in operating, adding that it “worked hand-in-hand with federal officials” to secure America’s food supply.
Plaintiffs point to Tyson exports to China
Attorneys for several of the plaintiffs suing the company have argued in court that despite those claims, Tyson processed so much meat during the pandemic that it was able to export product to China.
In fact, according to a lawsuit filed on behalf of three deceased former employees of the Waterloo plant, Tyson’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 plant remained open even after Gov. Kim Reynolds 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,” the Scott family’s lawsuit states.
The lawsuit also claims that one employee who called human resources asking whether it was safe to work was told he had a better chance of getting COVID-19 by shopping at Walmart than by going to work.
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 United States Court of Appeals for the Eighth Circuit, which has ordered a stay on certain cases until the issue of jurisdiction can be decided.
New Texas liability shield could scuttle workers’ case
In Texas, however, a lawsuit brought by 38 Tyson workers allegedly sickened or killed by the virus is proceeding in federal court, with a judge having already ruled Tyson was “acting under the direction of federal officials” during the pandemic.
Lawyers for the company are now asking that the case be dismissed, citing the Texas governor’s recent approval of the Pandemic Liability Protection Act, a state law that shields businesses from liability for workers’ exposure to COVID-19. In court filings, Tyson acknowledges the law retroactively imposes a “heavy burden” on workers, requiring them to show “reliable scientific evidence” that their employer’s conduct caused their infections.
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 shareholder lawsuits allege that last year, Noel White, Tyson’s former CEO and now the executive vice chairman of the board, was paid $10.9 million. Dean Banks, Tyson’s president and CEO, was allegedly paid $12.7 million, which included a $5 million bonus.
The lawsuits accuse the Tyson executives of unjust enrichment, gross mismanagement, and wasting corporate assets. The defendants have denied the allegations.
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