“A 45-year-old Tyson worker, who relies on his paycheck to feed his children, said he was provided $500 monthly bonuses for coming to work every day. He said his department was told workers would lose their jobs if they didn’t come to work.
“He described Tyson supervisors as 'vengeful' and said they don’t allow workers to speak publicly about plant conditions. He told a reporter that they might be 'beaten up' or 'chased out' for talking to workers.
“'I came straight from the prison system to here,' he said. 'Coming from the prison system dealing with COVID inside of prison, to coming out here to a plant that has a high percentage of COVID – it’s scary because I got children, and I’m like taking my chances. I got to pay bills.'”
– Sydney Czyzon, Scottsbluff (Nebraska) Star-Herald (November 19, 2020)
The Fernandez Lawsuit
Isidro Fernandez (age unknown) died in April after contracting COVID-19 while on the job at a Tyson Foods pork processing plant in Waterloo, Iowa. It was one of several Tyson facilities that experienced severe outbreaks of the coronavirus which has caused some to temporarily shut down.
Tyson suspended work at the Waterloo plant on April 22, 10 days after two dozen employees were admitted into a local emergency room.
Isidro Fernandez’s son, Oscar Fernandez, sued Tyson Foods earlier this year over the conditions in the plant and allegations that the company misinformed workers about the extent and severity of the outbreak.
The Fernandez lawsuit alleges …
“Despite an uncontrolled COVID-19 outbreak, Tyson required its employees to work long hours in cramped conditions. Moreover, despite the danger of COVID-19, Tyson failed to provide appropriate personal protective equipment and failed to implement sufficient social distancing or safety measures to protect workers from the outbreak.”
Oscar Fernandez also claims that one of the facility’s managers created a “cash buy-in, winner-take-all” betting pool for higher-ups over how many Waterloo employees would end up becoming ill from the virus, The Washington Post reports.
The lawsuit claims …
“Manager Tom Hart 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.”
Since the start of the pandemic, according to court filings, more than 1,000 employees at the Waterloo facility have been infected with COVID-19. Several other families of Waterloo facility workers have also filed lawsuits, according to The Associated Press.
As of May about 4,600 cases of the disease and 18 deaths have been linked to Tyson Foods, Business Insider reported.
According to the court documents, company supervisors were instructed by the defendants to falsely deny the existence of "confirmed cases" or "positive tests" within the Waterloo facility as early as March.
Company officials allegedly told workers "they had a responsibility to keep working in order to ensure Americans don't go hungry."
The plaintiffs say managers also continued transferring employees between plants after some had tested positive for the coronavirus without requiring them to quarantine.
Tyson offered $500 “thank you bonuses” to employees with perfect attendance for three months, incentivizing sick employees to continue working.
Manager John Casey explicitly directed supervisors to ignore signs of illness, "even if they were exhibiting symptoms of COVID-19, and he directed supervisors to make their direct reports come to work, even if those direct reports were showing symptoms of COVID-19," according to the lawsuit.
"On one occasion, Mr. Casey intercepted a sick supervisor en-route to get tested and ordered the supervisor to get back to work, adding, 'we all have symptoms—you have a job to do.' After one employee vomited on the production line, managers reportedly allowed the man to continue working and then return to work the next day.
In late March or early April, as the pandemic spread across Iowa, managers at the Waterloo plant reportedly began avoiding the plant floor for fear of contracting the virus. As a result, they increasingly delegated managerial authority and responsibilities to low-level supervisors who had no management training or experience. The supervisors did not require truck drivers and subcontractors to have their temperatures checked before entering the plant.
Court documents say that as early as March, high level executives began lobbying White House officials, including President Trump and Vice President Pence, and other members of Congress for protection from COVID-19 mitigation efforts.
They simultaneously lobbied Republican Gov. Kim Reynolds to issue an executive order stating that only the state government, not local governments, had the authority to close businesses in northeast Iowa, where the Waterloo facility is located.
(Vanessa Romo. “Tyson Managers Suspended After Allegedly Betting If Workers Would Contract COVID.” NPR. November 19, 2020.)
The case was initially filed in state court, claiming violations of Iowa law. At Tyson’s request, the case was moved to federal court, with the company claiming it had remained open during the pandemic “at the direction of a federal officer” – President Donald Trump, who, on April 28, invoked his authority under the Defense Production Act and ordered meat and poultry processing companies to continue operating.
The lawsuit claims that while Tyson has repeatedly claimed that its operations needed to remain open to feed America, the company increased its exports to China by 600% during the first quarter of 2020.
(Clark Kauffman. “Lawsuit: Tyson managers bet money on how many workers would contract COVID-19.” Iowa Capital Dispatch. November 19, 2020.)
How Tyson Relates to the Relief Package
Representative Katie Porter, Democrat representing California’s 45th Congressional District, reports Senate Majority Leader Mitch McConnell, R-Ky., is holding Covid-19 relief hostage. Porter tells the reason …
“Nobody should be confused about why Covid-19 relief is stalled. Democrats and Republicans have both compromised on the size and type of assistance. There is broad agreement to prevent safety net programs from expiring at the end of December: pandemic unemployment insurance, assistance for struggling small businesses and student loan relief.
“Impunity for reckless corporations – the "get out of jail free" cards that McConnell seeks – are merely a giveaway to the big corporate donors that he serves. There's no question: In addressing the coronavirus, Congress must prioritize the American people, not protect big corporations.”
For months, McConnell has insisted that Congress should take action to protect corporations that are alleged to engage in wrongdoing and endanger their employees, consumers and patients. Companies that don't provide protective equipment or mandate physical distancing in the workplace, for example, would face no civil liability when their workers become sick. He shares this priority with the Trump administration and other Senate Republicans.
This is an effort to greenlight corporate abuse. McConnell is lying to the American people about his motivation, claiming that an "epidemic" of coronavirus-related lawsuits must be addressed.
Lawsuits related to Covid-19 exposure are few and far between. According to data from the law firm Hunton Kurth Andrews, which tracks Covid-19 lawsuits, there are only 383 lawsuits in the entire country related to coronavirus exposure.
(Katie Porter. “Covid stimulus bill held hostage by McConnell over corporate 'get out of jail free' cards. NBC News. Dec. 15, 2020.)
The cases that have been filed represent some of the grossest instances of corporate abuse – including the case against Tyson Foods. Other cases allege horrific patient abuses at nursing homes or workplaces that forbid employees from using protective gear.
Representative Porter says …
“Shielding bad actors from accountability is a slap in the face to businesses that have made the necessary sacrifices for public health, like restaurants that have moved operations outside or mom-and-pop stores that have provided employees with proper protective equipment.
“Without scrutiny of allegations of corporate abuse in the courts, there may not be any justice for victims at all. The Occupational Safety and Health Administration, the federal agency responsible for protecting workers, has closed over 10,000 complaints, most without conducting inspections. The citations it has issued are tiny slaps on the wrist. McConnell is pushing for even fewer worker protections, tying up Covid-19 relief to put down a welcome mat for corporations knowingly putting employees in harm's way.”
(Katie Porter. “Covid stimulus bill held hostage by McConnell over corporate 'get out of jail free' cards. NBC News. Dec. 15, 2020.)
McConnell’s insistence on an incredibly broad liability protection for corporations that expose workers or customers to coronavirus would not just fundamentally change the ability for individuals to sue over COVID infections, but could permanently safeguard corporations from the consequence of their own negligence.
Even if cases were already hard to prove, a liability release would likely make businesses more lax on coronavirus protections, freed from any accountability in the aftermath.
(David Dayen. “Unsanitized: Key Senate Democrats May Agree to McConnell’s Corporate Immunity Measure.” The American Prospect. December 7, 2020.)
The prospect of liability for COVID-19 transmission is likely to encourage business owners to invest in cost-effective precautions, follow the advice of public health authorities, adopt industry safety standards and use common sense. Timothy Lytton, a law professor at Georgia State University, said the possibility of a suit can still be “a terrific deterrent” against unsafe business practices,
“The GOP’s desired shield is unnecessary and would have a devastating, long-lasting effect on residents and will increase harm, including death, should it pass.”
–Sam Brooks, project manager for The Consumer Voice
The GOP proposal would erect almost insurmountable obstacles to lawsuits by workers who become infected with the coronavirus at their workplaces. It would absolve employers of responsibility for taking any but the most minimal steps to make their workplaces safe. It would preempt tough state workplace safety laws (not that there are very many of them).
In addition the proposal would supersede such federal worker safeguards as the Occupational Safety and Health Act of 1970, the Fair Labor Standards Act of 1938, the Americans with Disabilities Act of 1990 and the Genetic Information Nondiscrimination Act of 2008, among others.
Pulitzer Prize-winning journalist Michael Hiltzik of the Los Angeles Times says …
“In plain English, the Republicans are proposing to eviscerate almost all workplace protections at the moment when the threat to workers' health may be at its highest in a century. Let's not overlook that federal enforcement of workplace safety is anything but strong to begin with. The maximum OSHA penalty is $13,494 per violation …
“The most obnoxious provision of the GOP proposal is one that shifts the liability in COVID cases from the employer to employee. This provision allows employers to sue employees or their representatives for bringing a claim for a COVID infection and offering to settle out of court …
“The GOP bill would make anyone offering to settle, either through a demand letter or otherwise, liable to be sued for damages if the case they're making is 'meritless.' That's another term that's undefined in the measure.
“Unlike the limitation on damages elsewhere in the bill, by the way, the punitive damages that can be awarded to employers bringing these lawsuits aren't capped.”
(Michael Hilzik. “Column: In GOP plan, you can't sue your employers for giving you COVID — but they can sue you.” Los Angeles Times. July 29, 2020.)
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