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DE ASENCIO v. TYSON FOODS, INC.

No. 06-3502.

500 F.3d 361 (2007)

Melania Felix DE ASENCIO; Manuel A. Gutierrez; Asela Ruiz; Eusebia Ruiz; Luis A. Vigo; Luz Cordova; Hector Pantajos, on behalf of themselves and all other similarly situated individuals, Appellants v. TYSON FOODS, INC.

United States Court of Appeals, Third Circuit.

Filed September 6, 2007.

Attorney(s) appearing for the Case

Thomas J. Elliott, Frederick P. Santarelli (Argued), Franco A. Corrado, Elliott, Greenleaf & Siedzikowski, Blue Bell, PA, for Appellants.

Michael J. Mueller (Argued), Joel M. Cohn, Michael S. McIntosh, Akin, Gump, Strauss, Hauer & Feld, Washington, DC, for Appellee.

Howard M. Radzely, Solicitor of Labor, Steven J. Mandel, Associate Solicitor, Paul L. Frieden, Counsel for Appellate Litigation, Joanna Hull (Argued), U.S. Department of Labor, Washington, DC, for Amicus Curiae Appellants, Secretary of Labor.

Robin S. Conrad, National Chamber Litigation Center, Inc., Washington, DC, Thomas J. Walsh, Jr., Arnold E. Perl, Patrick D. Riederer, Ford & Harrison LLP, Memphis, TN, for Amicus Curiae Appellee, Chamber Commerce of the United States.

David R. Wylie, D. Christopher Lauderdale, Jackson Lewis LLP, Greenville, SC, for Amicus Curiae Appellee, National Chicken Council and American Meat Institute.

Before: SLOVITER, ALDISERT, and ROTH, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

In instructing the jury in this case brought by poultry workers under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA" or "Act"), the District Court stated that in considering whether the workers' donning, doffing and washing was "work" under the Act, the jury must consider whether the activities involved physical or mental exertion. The jury decided the issue of work against the workers...

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