Tyson hires former AG Eric Holder to investigate claims of betting on worker infections

Tyson Foods workers wear protective equiipment on the production line. (Photo by Tyson Foods)

Tyson Foods’ CEO announced Thursday he has hired former U.S. Attorney General Eric Holder to lead an “independent investigation” into a lawsuit’s claims that managers in the company’s Waterloo plant placed bets on the number of workers who would contract COVID-19.

The claims of a betting pool at the food giant’s Waterloo plant, first reported by Iowa Capital Dispatch, are just one set of allegations Tyson is facing in lawsuits across the country.

In Iowa alone, at least three coronavirus-related cases, involving a total of five plaintiffs, are pending in state and federal court. Other COVID-19 lawsuits, filed on behalf of dozens of workers, are pending in Texas courts.

In response to the latest allegations involving a betting pool among managers at the company’s Waterloo plant, Tyson Foods’ president and chief executive officer, Dean Banks, said Thursday in a written statement:

“We are extremely upset about the accusations involving some of the leadership at our Waterloo plant. 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. 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.”

Marc Perrone, president of the United Food and Commercial Workers International labor union, which represents many of the workers in the Waterloo plant, also issued a statement on Thursday:

“America’s meatpacking workers are dying on the frontlines of this pandemic, putting themselves in harm’s way to ensure our families can put food on the table this Thanksgiving,” Perrone said. “This shocking report of supervisors allegedly taking bets on how many workers would get infected, pressuring sick workers to stay on the job, and failing to enforce basic safety standards, should outrage every American.”

Perrone said the allegations are evidence that the “Trump administration and Iowa Gov. Reynolds care more about industry profits than protecting America’s frontline workers … We are continuing to call on elected leaders to implement an enforceable national safety standard, increased access to PPE and COVID-19 testing, and rigorous proactive inspections.”

More than 1,000 Tyson employees at the Waterloo plant — a third of the facility’s workforce — have contracted the virus since the beginning of the pandemic and at least five of the workers have died.

Nationally, at least 4,600 Tyson employees in 15 states have been infected with COVID-19, and at least 18 have died. According to the Midwest Center for Investigative Reporting,  there have been at least 42,000 infections tied to meatpacking facilities in at least 470 plants in 40 states, and at least 215 deaths are associated with 51 plants in 27 states.

In Iowa alone, at least 3,835 infections and nine deaths are tied to meatpacking plants.

Among the Iowa lawsuits now facing Tyson Foods:

  • Earlier this year, the family of the late Isidro Fernandez sued Tyson, alleging Fernandez was exposed to the coronavirus at the Waterloo plant and later died. The lawsuit was revised last week to include new allegations that in mid-April, plant manager Tom Hart organized a cash-buy-in, winner-take-all, betting pool for supervisors and managers so they could wager how many plant employees would test positive for COVID-19.
  • In September, the family of Pedro Cano Rodriguez, who died on April 14 at the age of 51, sued Tyson, alleging the company failed to adequately protect its workers from COVID-19. Rodriguez was an employee of Tyson’s pork packing plant in Columbus Junction, and appears to have died within two weeks of contracting the virus.
  • In July, the families of Sedika Buljic, Honario Garcia and Jose Luis Ayala, Jr., sued Tyson, alleging the three former employees of the Waterloo plant spread the virus to them after contracting it at work. The three workers later died of the virus, according to the lawsuit.

In Texas, at least three lawsuits have been filed against Tyson — one by a group of 12 employees at the company’s plaint in Center, Texas, one by 41 employees of Tyson’s Amarillo plant, and one by the family of a deceased Tyson employee.

In one of the Texas cases, employees allege that Tyson Foods forced workers at one plant to continue to show up during the COVID-19 outbreak at a time when Gov. Greg Abbott’s stay-at-home order was in effect. The lawsuit also alleges that the company did not give workers proper personal protective equipment and did not provide employees with workers’ compensation insurance.

The lawsuit claims that in lieu of workers’ comp, Tyson implemented its own Workplace Injury Settlement Program wherein Tyson had employees sign liability releases before they could claim any benefits for on-the-job injuries. In many cases, the lawsuit alleges, Tyson had employees sign away their right to sue, and then either denied the workers benefits or paid out very smalls sums of money.

A common element of the lawsuits is the allegation that Tyson had plenty of advance notice as to the impact the virus was likely to have on its workforce in Iowa and other states.

The plaintiffs note that Tyson Foods has extensive business interests in China, with one of the company’s subsidiaries operating a facility in Hubei province. In January 2020, the company formed a corporate coronavirus task force after observing the impact the virus had on its operations in China.

On Jan. 11, Chinese state media reported its first known death from COVID-19, and by February, Tyson had allegedly halted operations at some of its facilities in China and scaled back operations in others.

On March 8, three COVID-19 cases were reported in Iowa, and four days later Tyson Foods barred all non-essential visitors from entering Tyson offices and facilities and mandated that all non-critical employees at its corporate offices work remotely.

On April 6, Tyson temporarily suspended operations at its Columbus Junction plant after more than two dozen employees tested positive for the virus. Despite that, employees of Packers Sanitation Services Incorporated allegedly moved back-and-forth between the Columbus Junction and Waterloo plants, working at both facilities without being quarantined and without being tested for COVID-19.

The Occupational Safety and Health Administration and the Centers for Disease Control and Prevention issued general guidance on preparing workplaces for the virus was early as March 9. But it wasn’t until April 26 that the agencies published additional guidelines that were specific to meat and poultry processing plants.

By that time, state lawmakers in Iowa had already filed an OSHA complaint against Tyson Foods in response to workers claiming they did not have sufficient personal protective equipment; social distancing measures were not being implemented or enforced; and nurses at the Waterloo Facility were unable to accurately conduct temperature checks.

On April 20, Iowa’s OSHA office inspected the Waterloo plant and later reported it had found no regulatory violations. The plant closed two days later and reopened in May with new safety measures in place.

The federal OSHA office, meanwhile, offered to support meatpackers in any litigation brought by workers or their families due to workplace exposure to the virus, assuming the companies made “a good faith effort” to comply with voluntary mitigation guidelines.

Public Citizen, a nonprofit advocacy group, has argued that state and federal efforts to provide legal immunity to businesses that demonstrate an effort to comply with federal guidelines could cripple the ability for workers and tehri families to sue, even in cases of gross negligence. The organization notes that guidelines from the CDC are just that — suggested guidelines, not mandatory regulations, which means that compliance is discretionary and businesses need to show only that they considered following the suggested measures.

“Where regulatory standards give near-total discretion to businesses, as is the case with the CDC guidelines, a compliance defense amounts to immunity — even when the entities do almost nothing, Public Citizen reported in in an August report on mitigation compliance.