Written by Áine Lowndes, L’26
Yet another set of child labor allegations has come out against poultry giant Tyson Foods. But can the Department of Labor do anything to hold the company accountable?
In December of 2022, following an investigation and injunction by the Department of Labor’s Wage and Hour Division, Packers Sanitation Services, Inc. agreed to pay a $1.5 million fine.[1] The investigation had found at least 102 illegally-employed minors working dangerous night-shift jobs cleaning industrial meat processing equipment.[2] Tyson foods owned two of the plants where child workers were found; six children were working at a Tyson plant in Green Forest, Arkansas, and one more in Goodlettsville, Tennessee.[3] However, Tyson and the other plant owners who “had benefited from underage labor” avoided any charges and Tyson “faced no penalties.” [4]
The following year, Tyson, along with its rival, Perdue, faced new allegations of child labor as the DOL opened an investigation into the pair.[5] Bloomberg Law noted that it “appeared to be the first time the agency has attempted to hold a parent company jointly liable for the child labor violations committed by a subcontractor.”[6] The DOL opened investigations into the poultry manufacturers’ cleaning subcontractors in Virginia, Fayette and QSI, which work with Perdue and Tyson respectively.[7] Shortly after, Tyson stated its intention to end its contract with QSI and employ more of its slaughterhouse cleaners directly. [8]
Recently released court documents show that in September of 2024, the Department of Labor searched two of Tyson’s plants in Rogers and Green Forest, Arkansas, after receiving two anonymous tips about school children working at the plants.[9] Tyson denies the allegations.[10]
These allegations are upsetting, but unsurprising. In 2023, NPR reported, citing the Department of Labor, that “child labor violations have nearly quadrupled since a low point in 2015 — leading to more injuries and deaths on the job.”[11] The U.S. Solicitor of Labor, Seema Nanda, intends to “make sure that those higher up in the supply chain are holding their subcontractors and staffing agencies accountable” when they “have child labor in their supply chain.”[12]l
The question is: how? If the Tyson investigations bear fruit, can the company really be held accountable for its subcontractors’ employees?
Some prominent attorneys have suggested that the Department of Labor will attempt to use the joint employment doctrine to charge Tyson under the Fair Labor Standards Act.[13]
The Joint Employment Doctrine
The joint employment doctrine allows a group of employees to have more than one legal employer for a single job.[14]Consequently, “all employers are jointly responsible for labor standards—and jointly accountable if they violate those standards.”[15] The joint employment doctrine requires that all proposed employers have sufficient ability to control the employees at issue.[16] The Supreme Court notably extended this doctrine in Boire v. Greyhound Corp.[17] The National Labor Relations Board (NLRB) ruled that Greyhound was the joint employer of its station cleaning crew and porters despite the cleaners and porters being employed by Greyhound’s subcontractor, Floors. In Boire, the Court held that a parent employer can be the joint employer of its subcontractor’s employees. More specifically,
Whether Greyhound, as the Board held, possessed sufficient control over the work of the employees to qualify as a joint employer with Floors is a question which is unaffected by any possible determination as to Floors’ status as an independent contractor, since Greyhound has never suggested that the employees themselves occupy an independent contractor status. And whether Greyhound possessed sufficient indicia of control to be an ’employer’ is essentially a factual issue.[18]
Since Floors’s status as a subcontractor was irrelevant, it was up to the Fifth Circuit to enforce or strike down the NLRB ruling.[19] At the time, the NLRB cited several factors that make Greyhound the cleaners’ employer: the employees lack of contact with Floors’s other employees and Greyhound’s right to establish work schedules, assign employees, set regular and overtime wages, and “specify the exact manner and means through which the work will be accomplished and issue orders or instructions to that effect,” the absence of Floors’s supervisors from the premises and supervision by Greyhound personnel, the employees’ use of Greyhound’s equipment and supplies, and the integral role the employees played in Greyhound’s enterprise.[20] On these bases, the Fifth Circuit ruled to enforce the Board’s ruling and hold Greyhound liable for refusing union negotiations with the cleaners and porters.[21]
The doctrine also applies under the Fair Labor Standards Act. The definitions of “‘employer”’ and “‘employee”’ are broad under the Fair Labor Standards Act.[22]
The Supreme Court noted that “these definitions bring[] within the FLSA’s ambit, workers ‘who might not qualify as [employees] under a strict application of traditional agency law principles’ or under other federal statutes.” [23] This broad definition originates from state child-labor laws.[24] Therefore, the control test need not be as strict as under general agency law.[25]
The Department of Labor typically analyzes multiple criteria in the employment relationship, including “whether an employer has hiring or firing authority, whether the work is being done at a potential joint employer’s facility, or whether the employee is integral to their operations, among other factors.”[26] Unfortunately, courts often disagree about the factors to weigh under a joint employment theory[27], and there is a lack of regulatory guidance on exercising the joint employment doctrine under the Fair Labor Standards Act.[28]
However, the Supreme Court has ruled that determination of the employee-employer relationship does not depend on “isolated factors but rather upon the circumstances of the whole activity.”[29] In Rutherford Food Corp. v. McComb, the Court found that meat de-boners hired by a subcontractor were employees of the parent meat company.[30] Still, the Court noted the use of the parent company’s premises and equipment, that the group of workers “had no business organization that could or did shift as a unit from one slaughterhouse to another,” and that the work was part of the production line that stayed constant despite changes in the managing subcontractor.[31] The Court emphasized that “[w]here the work done , in its essence, follows the usual path of an employee, putting on an ‘”independent contractor’” label does not take the worker from the protection of the Act.”[32]
In a more recent case, Salinas v. Commercial Interiors, Inc., the Fourth Circuit found that a contractor was a joint employer of its subcontractor’s employees – a group of drywallers.[33] The court sets up the test as follows:
joint employment exists when (1) two or more persons or entities share, agree to allocate responsibility for, or otherwise codetermine— formally or informally, directly or indirectly—the essential terms and conditions of a worker’s employment and (2) the two entities’ combined influence over the essential terms and conditions of the worker’s employment render the worker an employee as opposed to an independent contractor.[34]
In Salinas, the parent company (contractor) was found to be the drywallers’ employer.[35] The court considered the parent company’s control over work schedules, assignments, and timesheet records.[36] Further, the Fourth Circuit noted that the parent company’s supervisors supervised and quality checked the work of the drywallers, that the parent company provided the tools and materials for the work, and that the drywallers wore branded work gear with the parent company’s logo and were told to identify themselves as working for the parent company.[37]
However, the court noted that factors commonly considered by courts were not dispositive. The court simply needs to find that the proposed employers are “not completely disassociated” with regard to the worker such that they meet the two part test.[38] Factors are merely useful to show some association between the proposed employers. The court highlights six factors worth considering: supervision; power to hire, fire or modify terms or conditions of the employment; permanency of the relationship between the putative joint employers; “[w]hether, through shared management or a direct or indirect ownership interest, one putative joint employer controls, is controlled by, or is under common control with the other putative joint employer; the premises where the work takes place; and “[w]hether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate responsibility over functions ordinarily carried out by an employer, such as handling payroll . . . or providing the facilities, equipment, tools, or materials necessary to complete the work.” [39]
Tyson’s Subcontractors
Tyson foods has had at least one plant contracting with PSSI as late as Jun 28, 2024.[40] After the PSSI controversy, Tyson terminated its contracts with PSSI at “some of their plants — particularly any plants where Labor Department investigators confirmed children were working” but “declined to provide specific numbers about how many contracts they cut and how many plants PSSI is still cleaning for them.” [41] In the initial PSSI controversy, Tyson avoided charges.[42] It is, as of yet, unpublicized which, if any, subcontractors are involved in the most recent Arkansas allegations.
As for Tyson’s work with QSI, Tyson planned to terminate several of its contracts with QSI after the Virginia allegations and the opening of the Department of Labor investigation against Tyson and Perdue, as well as their respective subcontractors.[43] David Weil, former head of the DOL’s Wage and Hour Division, considers joint employment doctrine a feasible argument to make Tyson liable for potential FLSA violations found as a result of these investigations.[44] To support his assertion, Weil cites, in line with DOL’s criteria, that cleaners worked at Tyson facilities, Tyson needs these cleanings done daily, and, therefore, the work is an intrinsic part of a Tyson plant’s work. [45]
How Tyson and QSI shared or divided up control over the sanitation workers at Tyson plants is not publicized. However, QSI’s website lends insight into the role of the parent company in QSI’s operations. QSI states that “90% of the daily success in a sanitation program rests on the shoulders of local management” and that QSI merely provides “support” to make up the remaining 10%.[46] Local management manages “the process.”[47] In addition, QSI invites its associates to participate in the development of its safety programs.[48] These statements suggest that the parent company’s local managers at a plant are very involved in deciding how the sanitation workers work. Further, QSI works “with the local team to hire, train, and educate the right talent.”[49] This suggests the local managers are involved in the hiring and training of the QSI sanitation employees at the plant.
Tyson itself details the cleaning process for its plants and states that it has “specific criteria for any product that’s used for . . . sanitizing.”[50] Tyson also takes random samples to test for protein or bacteria after cleaning.[51] Failure of such tests requires a “do-over” of the cleaning process.[52] Tyson also asserts that sanitation happens not just every day, but “around the clock.”[53] Tyson’s statements indicate that the company dictates the products sanitation workers can use and assesses the quality of sanitation employees’ work. It can also be inferred that a “do-over” of the whole process may lead to over-time and, thus, Tyson appears to be in control of its sanitation workers’ schedules with regard to overtime. Even when its sanitation workers are organized via a subcontractor, the sparse information available to the public suggests that Tyson exercises some control over these workers.
Further, Tyson claims that its own workers clean about 40% of its plants and that the company is hoping to increase that number.[54] Therefore, in many cases, it should not be a stretch to find that Tyson is the employer of the sanitation workers at its plants, and is, therefore, liable for any FLSA violations that victimize them in their role.
It is unclear at this point whether the Department of Labor’s new investigation in Arkansas involves Tyson’s direct employees, or the direct employees of one of Tyson’s subcontractors.[55] The recently publicized warrant requests to search Tyson facilities in Arkansas “were seeking records relating to the employment of minors” and “relating to employees for Tyson Foods or affiliates and contractors of Tyson Foods.” [56] The warrant allowed the Department to seize records for “all former and current individuals employed by or working for Tyson Foods or its agents or affiliates or any currently unknown third-party contractor engaged by Tyson Foods to provide services” at the plants under scrutiny. [57]
Federal Goals Conflicting with State Actions
It’s important for federal agencies and courts to take broad and creative approaches to enforcing FLSA’s child labor protection. According to the Department of Labor, “there has been a 69% increase since 2018 in the number of children being employed illegally nationwide,” and the Department has “more than 600 child labor investigations underway.”[58] This issue goes far beyond the allegations made against Tyson Foods. Yet, multiple states have enacted legislation to weaken child labor laws.[59] The Economic Policy Institute reports that “at least 10 states introduced or passed laws rolling back child labor protections in the past two years.”[60]
In Arkansas, where a Tyson plant had a verified case of child labor in 2022 and where two plants are currently under investigation, a bill was passed in 2023 that repealed restrictions on work for 14 and 15 year olds who will “no longer need to provide an employment certificate from the Division of Labor that verifies proof of their age and parental consent to work.”[61] This bill, HB 1410, is likely to facilitate the exploitation of youth and traffickers targeting migrant children. [62]
If federal enforcement continues to let large parent companies off the hook, as it did the plant owners in the PSSI case, this issue will only get worse.
Photograph of a Child with Tyson Fun Nuggets, in Your Kids Will ‘Go Wild’ Over This Dinosaurs Themed Dinner, Hurried Hostess (July 24, 2018), https://hurriedhostess.com/dinosaurs-themed-dinner/.
[1] Rebecca Rainey, Packers Sanitation Faces $1.5 Million Child Labor Case Fine, BL (Feb. 17, 2023, 12:40 PM), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/bloomberg-law-news/X8CFH808000000#jcite.
[2] Id.
[3] More Than 100 Children Illegally Employed in Hazardous Jobs, Federal Investigation Finds; Food Sanitation Contractor Pays $1.5M in Penalties (2023), https://www.dol.gov/newsroom/releases/whd/whd20230217-1.
[4] Juliana Kim, Perdue Farms and Tyson Foods Under Federal Inquiry Over Reports of Illegal Child Labor, NPR (Sept. 25, 2023, 4:07 PM), https://www.npr.org/2023/09/25/1201524399/child-labor-perdue-farms-tyson-foods-investigation; Rebecca Rainey, Packers Sanitation Faces $1.5 Million Child Labor Case Fine, BL (Feb. 17, 2023, 12:40 PM), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/bloomberg-law-news/X8CFH808000000#jcite.
[5] Rebecca Rainey, Perdue, Tyson Face ‘Unique’ Probe in Child Labor Crackdown, BL (Oct. 10, 2023, 2:05 PM), https://www.bloomberglaw.com/bloomberglawnews/daily-labor-report/X9HEQLBS000000?bna_news_filter=daily-labor-report#jcite.
[6] Id.
[7] Hannah Dreier, Tyson and Perdue Are Facing Child Labor Investigations, The N.Y. Times (Sept. 23, 2023), https://www.nytimes.com/2023/09/23/us/tyson-perdue-child-labor.html.
[8] Id.
[9] Daniel Miller, Tyson Foods Under Investigation by Department of Labor Over Child Labor Claims, KTVU FOX 2 (Nov. 6, 2024, 12:16 PM), https://www.ktvu.com/news/tyson-foods-investigation-child-labor-claims.
[10] Tyson Denies Child Labor Claims as Labor Department investigates Possible Violations, 40/29 News (Oct. 10, 2024), https://www.youtube.com/watch?v=L4QH36zU52s.
[11]Juliana Kim, Perdue Farms and Tyson Foods Under Federal Inquiry Over Reports of Illegal Child Labor, NPR (Sept. 25, 2023, 4:07 PM), https://www.npr.org/2023/09/25/1201524399/child-labor-perdue-farms-tyson-foods-investigation.
[12] Hannah Dreier, Tyson and Perdue Are Facing Child Labor Investigations, The N.Y. Times (Sept. 23, 2023), https://www.nytimes.com/2023/09/23/us/tyson-perdue-child-labor.html.
[13] Rebecca Rainey, Perdue, Tyson Face ‘Unique’ Probe in Child Labor Crackdown, BL (Oct. 10, 2023, 2:05 PM), https://www.bloomberglaw.com/bloomberglawnews/daily-labor-report/X9HEQLBS000000?bna_news_filter=daily-labor-report#jcite.
[14] ‘Joint Employment’ Keeps Corporations Accountable When They Outsource Work, National Employment Law Project, https://www.nelp.org/explore-the-issues/contracted-workers/joint-employer-accountability/.
[15] Id.
[16] Id.
[17] Boire v. Greyhound Corp., 376 U.S. 473 (1964).
[18] NLRB v. Greyhound Corp., 368 F.2d 778, 780 (5th Cir. 1966) (citing Boire v. Greyhound Corp., 376 U.S. 473 (1964)).
[19] NLRB v. Greyhound Corp., 368 F.2d 778 (5th Cir. 1966).
[20] Id. at 781
[21] Id.
[22] Salinas v. Commercial Interiors, Inc., 848 F.3d 125, 143 (4th Cir. 2017); Rutherford Food Corp. v. McComb, 331 U.S. 722, 728-30 (1947).
[23] Salinas v. Commercial Interiors, Inc., 848 F.3d 125,133 (4th Cir. 2017).
[24] Salinas v. Commercial Interiors, Inc., 848 F.3d 125, 133 (4th Cir. 2017); Rutherford Food Corp. v. McComb, 331 U.S. 722, 728-30 (1947).
[25] Salinas v. Commercial Interiors, Inc., 848 F.3d 125, 133, 136 (4th Cir. 2017).
[26] Rebecca Rainey, Perdue, Tyson Face ‘Unique’ Probe in Child Labor Crackdown, BL (Oct. 10, 2023, 2:05 PM), https://www.bloomberglaw.com/bloomberglawnews/daily-labor-report/X9HEQLBS000000?bna_news_filter=daily-labor-report#jcite.
[27] Salinas v. Commercial Interiors, Inc., 848 F.3d 125,133, 140 (4th Cir. 2017); Rebecca Rainey, Perdue, Tyson Face ‘Unique’ Probe in Child Labor Crackdown, BL (Oct. 10, 2023, 2:05 PM), https://www.bloomberglaw.com/bloomberglawnews/daily-labor-report/X9HEQLBS000000?bna_news_filter=daily-labor-report#jcite.
[28] Rebecca Rainey, Perdue, Tyson Face ‘Unique’ Probe in Child Labor Crackdown, BL (Oct. 10, 2023, 2:05 PM), https://www.bloomberglaw.com/bloomberglawnews/daily-labor-report/X9HEQLBS000000?bna_news_filter=daily-labor-report#jcite; Rescission of Joint Employer Status Under the Fair Labor Standards Act Rule, 86 Fed. Reg. 40939 (proposed July 30, 2021) (codified at 29 C.F.R. pt. 791) (rescission of the Wage and Hour Division’s rule on Joint Employer Status, leaving the doctrine undefined under FLSA),
https://www.federalregister.gov/documents/2021/07/30/2021-15316/rescission-of-joint-employer-status-under-the-fair-labor-standards-act-rule.
[29] Rutherford Food Corp. v. McComb, 331 U.S. 722, 729 (1947).
[30] Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947).
[31] Id. at 730.
[32] Rutherford Food Corp. v. McComb, 331 U.S. 722, 729 (1947).
[33] Salinas v. Commercial Interiors, Inc., 848 F.3d 125,151 (4th Cir. 2017).
[34] Id.
[35] Salinas v. Commercial Interiors, Inc., 848 F.3d 125 (4th Cir. 2017).
[36] Id. at 130.
[37] Salinas v. Commercial Interiors, Inc., 848 F.3d 125, 130 (4th Cir. 2017); Rebecca Rainey, Perdue, Tyson Face ‘Unique’ Probe in Child Labor Crackdown, BL (Oct. 10, 2023, 2:05 PM), https://www.bloomberglaw.com/bloomberglawnews/daily-labor-report/X9HEQLBS000000?bna_news_filter=daily-labor-report#jcite
[38] Salinas v. Commercial Interiors, Inc., 848 F.3d 125, 140-141 (4th Cir. 2017).
[39] Id. at 141-142
[40] PSSI, the sanitation service that cleans the Tyson plant, is laying off 76 workers, KCCI (Mar. 29, 2024), https://www.youtube.com/watch?v=2MUleTVUB7k; Prospective buyer could reopen shuttered Tyson plant in Perry, KCCI (Oct 25, 2024, 4:07 PM), https://www.kcci.com/article/perry-city-officials-tyson-foods-plant-sale/62718184.
[41] Josh Funk, Firm That Hired Kids to Clean Meat Plants Keeps Losing Work, 40/29 News (May 2, 2023, 9:28 AM), https://www.4029tv.com/article/firm-that-hired-kids-to-clean-meat-plants-keeps-losing-work/43770090?fbclid=IwZXh0bgNhZW0CMTAAAR2H5APRMuQeEENIG9-fEB5vl1h0b-aOKnCwVZZrq1nPjHlKwuf-SxYfZmg_aem_oLtfly_AqHOw-yEgM-Er_w.
[42] Rebecca Rainey, Packers Sanitation Faces $1.5 Million Child Labor Case Fine, BL (Feb. 17, 2023, 12:40 PM), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/bloomberg-law-news/X8CFH808000000#jcite.
[43] Hannah Dreier, Tyson and Perdue Are Facing Child Labor Investigations, The N.Y. Times (Sept. 23, 2023), https://www.nytimes.com/2023/09/23/us/tyson-perdue-child-labor.html.
[44] Rebecca Rainey, Perdue, Tyson Face ‘Unique’ Probe in Child Labor Crackdown, BL (Oct. 10, 2023, 2:05 PM), https://www.bloomberglaw.com/bloomberglawnews/daily-labor-report/X9HEQLBS000000?bna_news_filter=daily-labor-report#jcite.
[45] Id.
[46] QSI: Contract Sanitation, VINCIT, https://www.vincitgroup.com/contract-sanitation/.
[47] Id.
[48] Id.
[49] Id.
[50] Suzanne Finstad, Not Your Average Kitchen Clean-Up: Sanitation in Meat and Poultry Plants, Tyson Foods (July 7, 2020), https://thefeed.blog/2019/12/09/improving-food-safety-is-a-top-priority-for-tyson-foods/.
[51] Id.
[52] Id.
[53] Id.
[54] Hannah Dreier, Tyson and Perdue Are Facing Child Labor Investigations, The N.Y. Times (Sept. 23, 2023), https://www.nytimes.com/2023/09/23/us/tyson-perdue-child-labor.html.
[55]See In the Matter of the Search of Tyson Foods, 212 E. Elm Street, Rogers, Ark. 72756; and 2200 W. Don Tyson Pkwy, Springdale, AR 72762 5, Sept. 6, 2024 (Search and Seizure Warrant).
[56] Spencer Bailey, Department of Labor Investigating Child Labor Claims at Tyson, 5 News
(Oct. 9, 2024, 7:56 PM), https://www.5newsonline.com/article/news/local/department-labor-child-labor-tyson/527-21c0bd01-6313-45a7-843a-f5f00582b841?fbclid=IwZXh0bgNhZW0CMTAAAR3Ith1ASWoXJ6gBgVmtH253BVYNgGByO7NkFKmB14WrewD07plmaV5D9iU_aem_yYipmqSNUN3EH-2DQmG5hQ.
[57] In the Matter of the Search of Tyson Foods, 212 E. Elm Street, Rogers, Ark. 72756; and 2200 W. Don Tyson Pkwy, Springdale, AR 72762 5, Sept. 6, 2024 (Search and Seizure Warrant) (available at https://arktimes.com/arkansas-blog/2024/10/16/tyson-foods-under-investigation-again-for-child-labor-violations?fbclid=IwZXh0bgNhZW0CMTAAAR2H5APRMuQeEENIG9-fEB5vl1h0b-aOKnCwVZZrq1nPjHlKwuf-SxYfZmg_aem_oLtfly_AqHOw-yEgM-Er_w).
[58] Hannah Dreier, Tyson and Perdue Are Facing Child Labor Investigations, The N.Y. Times (Sept. 23, 2023), https://www.nytimes.com/2023/09/23/us/tyson-perdue-child-labor.html.
[59] See, e.g., S.F. 167, 2023 Gen. Assemb., Reg. Sess. (Iowa 2023) (renamed S.F. 542).
[60] Jennifer Sherer & Nina Mast, Child Labor Laws Are Under Attack in States Across the Country, Econ. Pol’y Inst. (Updated Dec. 21, 2023), https://www.epi.org/publication/child-labor-laws-under-attack/.
[61] Lara Farrar & Phillip Powell, Tyson Foods under Investigation Again for Alleged Child Labor Violations, Ark. Times (Oct. 16, 2024), https://arktimes.com/arkansas-blog/2024/10/16/tyson-foods-under-investigation-again-for-child-labor-violations; More Than 100 Children Illegally Employed in Hazardous Jobs, Federal Investigation Finds; Food Sanitation Contractor Pays $1.5M in Penalties (2023),https://www.dol.gov/newsroom/releases/whd/whd20230217-1; Jennifer Sherer & Nina Mast, Child Labor Laws Are Under Attack in States Across the Country, Econ. Pol’y Inst. (Updated Dec. 21, 2023), https://www.epi.org/publication/child-labor-laws-under-attack/.
[62] Jennifer Sherer & Nina Mast, Child Labor Laws Are Under Attack in States Across the Country, Econ. Pol’y Inst. (Updated Dec. 21, 2023), https://www.epi.org/publication/child-labor-laws-under-attack/.
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