Managers fired by Tyson for COVID-19 betting pool at Waterloo plant sue company

Six of the seven managers fired from the Tyson’s Food Plant in Waterloo in December 2020 for creating a betting pool to wager on workers getting COVID-19 are suing the company, claiming they earned incentive payments for meeting production goals they never received.

The Des Moines Register reported on Tuesday that five fired managers filed separate lawsuits in Black Hawk County District Court last month. The total amount sought in those lawsuits is approximately $300,000. Another fired manager, Bret Tapken, filed a lawsuit in December 2021, claiming he was owed approximately $15,000 in incentive pay.

The existence of the betting pool among managers at the Waterloo plant first came to light in a November 2020 filing in a lawsuit against Tyson by the family of a Waterloo plant worker who died from COVID-19 in April that year. The virus was raging in the plant, where employees worked in close proximity to each other, and the lawsuit by Isidro Fernandez’s family alleged Tyson displayed “willful and wanton disregard for workplace safety” at the Waterloo plant.

“In Waterloo, 1,174 of about 2,800 total employees tested positive for the virus in April 2020, according to a letter a Tyson Foods attorney later submitted to a congressional oversight committee,” the Register reported. “The company reported that seven workers died.”

Black Hawk County was among the hardest hit counties by COVID-19 during the first part of the pandemic, and local officials said spread of the virus in the Tyson plant was driving virus spread throughout the county. County officials complained about lack of cooperation from the company in efforts to reduce spread.

“I think Tyson is focused on production, period,” Black Hawk County Sheriff Tony Thompson said in April 2020. “I don’t think Tyson gives two shits about who is filling one particular spot on the production floor that day. I think they are purely concerned about productivity at that plant.”

The following week, Gov. Kim Reynolds praised the management of the Waterloo plant during a news conference.

“I have had the opportunity to speak with the Tyson plant in Waterloo,” Reynolds said at the April 16, 2020 news conference. “I was able to do that last evening about the steps that they’re taking to protect the help of their employees.”

Responding to a reporter’s question, Reynolds explained she has only spoken with Tyson management and not any plant workers. It was a pattern the governor has maintained throughout the pandemic, only speaking to managers or corporate executives of meat-processing plants and not meeting with workers or their representatives.

Six days after the governor’s news conference, Tyson temporarily closed the Waterloo plant, citing “worker absenteeism” as one of its main reasons for doing so.

After news of the COVID betting pool broke, Tyson hired former Obama administration attorney general Eric Holder’s law firm to conduct an investigation into the allegations. Holder’s firm presented Tyson with a report on its findings in December 2020. Tyson did not release the report, but just days later fired the seven managers.

At the time, some of the fired managers complained publicly that the betting pool, in which participants wagered on the percentage of workers testing positive for COVID-19, was being misinterpreted as showing callous disregard for workers suffering during the pandemic instead of “simply something fun.”

“It was a group of exhausted supervisors that had worked so hard and so smart to solve many unsolvable problems,” Don Merschbrock, one of the fired managers, told the Associated Press. “It was simply something fun, kind of a morale boost for having put forth an incredible effort. There was never any malicious intent. It was never meant to disparage anyone.”

Merschbrock is suing Tyson for $73,000 he claims the company owes him in incentive pay.

In an affidavit filed in his lawsuit against Tyson, former manager Tom Hart said he organized the betting pool as a “team building exercise.” Hart is suing for $125,000.

Attorneys for Tyson responded to the claims in the lawsuit by saying that incentive bonuses are payments made at the discretion of the company, and the conduct of the fired managers disqualifies them from receiving the money.

Tyson is still fighting lawsuits in state court by families of three other Waterloo plant workers who died from COVID-19, in addition to the one by the Fernandez family. The company has attempted to move the lawsuit to federal court, where it may stand a better chance of having former President Trump’s April 28, 2020 executive order directing meat-processing plants to stay open shield the company from liability.

In December 2020, a federal judge rejected the company’s move, directing the lawsuits to continue in state court.

“No federal officer directed Tyson to keep its Waterloo facility open in a negligent manner … or make fraudulent misrepresentations to employees at the Waterloo facility regarding the risks or severity of the coronavirus pandemic and COVID-19 outbreak at the Waterloo facility,” Judge Linda Reade wrote in her decision.

Tyson lost its appeal of Reade’s decision to the Eighth Circuit. In May, Tyson filed an appeal with the U.S. Supreme Court that is currently pending.

The Waterloo plant is the company’s largest pork-processing facility.