                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-1582
                        ___________________________

      Manuel Acosta, on Behalf of Himself and All Other Similarly Situated
   Individuals; Luis Montoya, On Behalf Of Himself And All Other Similarly
   Situated Individuals; Martin Hinojosa, On Behalf Of Himself And All Other
                          Similarly Situated Individuals,

                       lllllllllllllllllllll Plaintiffs - Appellees,

                                            v.

             Tyson Foods, Inc., doing business as Tyson Fresh Meats,

                      lllllllllllllllllllll Defendant - Appellant.
                                       ____________

                    Appeal from United States District Court
                      for the District of Nebraska - Omaha
                                 ____________

                            Submitted: January 15, 2015
                              Filed: August 26, 2015
                                  ____________

Before COLLOTON, BEAM, and KELLY, Circuit Judges.
                          ____________

COLLOTON, Circuit Judge.

     Manuel Acosta, Luis Montoya, and Martin Hinojosa sued Tyson Foods, Inc.
on behalf of a class of employees at Tyson’s pork processing plant in Madison,
Nebraska. They claim that Tyson failed to pay certain wages due, in violation of the
Nebraska Wage Payment and Collection Act, Neb. Rev. Stat. § 48-1228 et seq., and
the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. The district court
certified a class consisting of current and former hourly employees of Tyson’s
Madison facility, who “are or were paid under a ‘gang time’ compensation system in
the Kill, Cut or Conversion Departments.” The court then granted summary judgment
in favor of the plaintiffs on most liability issues, and awarded nearly $19 million to
the class after a bench trial on damages and Tyson’s defense of good faith. Tyson
appeals the class certification, the summary judgment ruling, and several issues
related to the bench trial. We conclude that Tyson is entitled to judgment as a matter
of law on both the federal and state claims, and we therefore reverse the judgment.

                                          I.

       Tyson owns and operates a pork processing facility in Madison, Nebraska.
Hourly production employees at the Madison facility are generally divided into
“slaughter” and “processing” departments. Tyson compensates the employees for
time spent on the actual production line, known as “gang time.” In addition to “gang
time,” Tyson pays employees for a number of minutes per day, known as “K-code
time,” for certain pre- and post-shift activity. These activities include the donning
and doffing of personal protective equipment and clothing, cleaning and maintaining
equipment and clothing, and walking to and from the production line, lockers, and
wash stations. The extent of the pre- and post-shift activities required of employees
varies based on their job classification.

       Before 2007, pursuant to a settlement between Tyson’s predecessor and the
Department of Labor, all employees who used knives were paid for four minutes of
K-code time to compensate for time spent donning and doffing protective equipment
particular to knife users. In January 2007, Tyson revised its policy to provide
compensation for zero to eight minutes of K-code time to employees depending on



                                         -2-
their position. Knife users received pay for four to eight minutes of K-code time.
Tyson circulated a memorandum to this effect to all employees.

       In 2010, Tyson again revised its compensation policy and circulated another
memorandum explaining the changes and clarifying how employees would be paid
for K-code time. Effective February 1, 2010, employees at the Madison plant
received twenty minutes of paid time, in addition to “gang time,” to compensate for
pre- and post-shift and break time activity. Some employees received pay for another
one to four minutes, depending on the particular equipment required for their
position.

       The employees brought suit in 2008 under the Nebraska Wage Payment and
Collection Act, claiming that Tyson failed to pay them adequately for the pre- and
post-shift and break time activities. They also pleaded what is known as a “collective
action” under the federal Fair Labor Standards Act for unpaid overtime wages on
behalf of themselves and other employees similarly situated. See 29 U.S.C. § 216(b).
The district court certified the Collection Act claim as a class action under Federal
Rule of Civil Procedure 23. As for the FLSA claims, none of the plaintiffs timely
filed consent in writing to become a party, pursuant to 29 U.S.C. §§ 216(b) and 256,
and the district court never certified a collective action.

      Tyson moved for summary judgment on the state law claim, arguing that
employees failed to prove an agreement to pay the wages at issue, as required by the
Collection Act. The district court rejected Tyson’s argument, reasoning that “hourly
production employees” can use the Collection Act as a mechanism for collecting any
wages that were due and unpaid. The district court granted the employees’ cross-
motion for summary judgment on all liability issues except for Tyson’s defense of
good faith under 29 U.S.C. § 259(a). The case proceeded to trial on the good faith
defense and damages.



                                         -3-
      Before trial, Tyson moved to dismiss the FLSA claims brought by Acosta,
Montoya, and Hinojosa for failure to file a timely consent to the collective action as
required by 29 U.S.C. § 216(b). Tyson also argued that Montoya and Hinojosa
should be dismissed as parties for failure to participate in discovery. In a response,
Montoya and Hinojosa conceded that their FLSA claims should be dismissed, but
asked the court to allow them to proceed as absent class members on the state law
claim. The district court denied Tyson’s motion to dismiss Acosta’s FLSA claim and
allowed Montoya and Hinojosa to proceed on the state law claim.

       After a seven-day bench trial, the court rejected Tyson’s good faith defense and
awarded compensatory damages of $6,258,329.74 and liquidated damages of
$12,516,659.48, for a total award to the employees of $18,774,989.22. Tyson
appeals, challenging the denial of its motion for summary judgment and several issues
related to the class certification and trial.

                                          II.

                                          A.

       We first address Tyson’s contention that the district court should have
dismissed Acosta’s FLSA claim for failure to file a timely consent. Tyson argues that
because Acosta pleaded a collective action under the FLSA, he could not proceed as
a party plaintiff to that action without giving timely consent in writing. Acosta did
file a consent to join the FLSA collective action on January 1, 2013, but he did so
well after the statute of limitations expired in July 2009. See 29 U.S.C. § 255(a).

      The FLSA sets forth the consent requirement:

      An action . . . may be maintained against any employer . . . by any one
      or more employees for and in behalf of himself or themselves and other

                                         -4-
      employees similarly situated. No employee shall be a party plaintiff to
      any such action unless he gives his consent in writing to become such
      a party and such consent is filed in the court in which such action is
      brought.

29 U.S.C. § 216(b). Acosta argues that he was not required to file a written consent,
because the FLSA claim was an individual action brought for only himself, not a
collective action also maintained on behalf of other employees similarly situated.
See, e.g., Allen v. Atlantic Richfield Co., 724 F.2d 1131, 1134-35 (5th Cir. 1984);
Morelock v. NCR Corp., 586 F.2d 1096, 1103 (6th Cir. 1978).

       We conclude that Acosta was required to file a timely consent, because his
complaint alleged a collective action. The complaint was styled as a “Class Action
and Collective Action Complaint.” R. Doc. 1. The employees brought the claims “by
themselves and on behalf of other similarly situated individuals.” Id. (emphasis
added). In their prayer for relief, the employees asked the court to “permit this action
to go forward as a ‘collective action’ pursuant to 29 U.S.C. § 216(b).” In a Joint
Planning Report filed with the court, the parties specified that any motion for
conditional certification of a collective action would be filed by December 15, 2008.
The employees never moved for conditional certification, but they did file fifty-five
consents to join the FLSA collective action on January 29, 2009. In response, Tyson
filed an opposition to conditional certification on February 16, 2009. Acosta never
amended his complaint to allege an individual action.

       Acosta argues that his complaint “commenced” an individual action, and no
collective action was ever commenced because the required consents were never
filed. That contention rings hollow when the complaint on file continued to allege
a collective action, and Acosta filed consents from other employees several weeks
after the deadline for a certification motion—a filing that would have been
nonsensical if the complaint alleged an individual action. Acosta never made clear
that he intended to convert the collective action pleaded in the complaint into an

                                          -5-
individual action on behalf of himself alone. Therefore, Acosta was required to file
a written consent to proceed as a party plaintiff. Because he failed to do so before the
statute of limitations expired, the district court should have dismissed Acosta’s claim
under the FLSA. See Harkins v. Riverboat Servs., Inc., 385 F.3d 1099, 1101-02 (7th
Cir. 2004).

                                          B.

        Tyson also challenges the judgment in favor of the employees under the
Nebraska Wage Payment and Collection Act. The Collection Act provides a cause
of action for employees to recover unpaid wages. Neb. Rev. Stat. § 48-1231(1).
“Wages” are defined as “compensation for labor or services rendered by an employee
. . . when previously agreed to and conditions stipulated have been met.” Neb. Rev.
Stat. § 48-1229(6) (emphasis added). In other words, the Collection Act allows an
employee to recover only those wages that an employer previously has agreed to pay.
See Eikmeier v. City of Omaha, 783 N.W.2d 795, 798 (Neb. 2010).

       Tyson argues that the employees failed to make a submissible case under the
Collection Act. According to Tyson, it was undisputed that Tyson paid wages for
gang time plus applicable K-code time, and the employees presented no evidence that
Tyson previously had agreed to pay any other wages. Without any unpaid wages to
which the employer had agreed, the argument goes, there was nothing for the
employees to collect under the Collection Act.

      The district court, citing Hawkins v. City of Omaha, 627 N.W.2d 118, 130
(Neb. 2001), interpreted the Collection Act differently. The court thought as long as
an employer “agree[d] to pay [employees] at the appropriate rate of pay for the duties
they were performing,” the compensation later adjudged to be appropriate under the
FLSA was “previously agreed to” within the meaning of the Collection Act. Acosta
v. Tyson Foods, Inc., No. 8:08CV86, 2012 WL 6552772, at *10 (D. Neb. Dec. 14,

                                          -6-
2002) (internal quotation marks omitted). As a result, the court ruled that hourly
employees could use the Collection Act as a “mechanism for collecting any
uncompensated wages.”

        In Hawkins, two employees of the City of Omaha brought suit under the
Collection Act, claiming that they were improperly classified as a City Maintenance
Foreman I rather than a City Maintenance Foreman II. 627 N.W.2d at 121. They
claimed that though they were both classified as a Foreman I, they were actually
performing the duties of a Foreman II and should be paid at that classification’s
higher rate. Id. at 121-22. The City argued that the Collection Act did not apply,
because it had not agreed to pay the employees at the Foreman II classification. The
Supreme Court of Nebraska ruled for the employees, holding that the City agreed to
pay its employees “at the appropriate rate of pay for the duties they were performing.”
Id. at 130.

       Hawkins is inapposite here. The Nebraska court concluded that the Omaha
Municipal Code functioned as an agreement by the City of Omaha to pay municipal
employees according to the duties they were performing. Because the Municipal
Code provided that the classification plan would “reflect the duties being performed
by each employee in the classified service,” the court reasoned that the City had
“previously agreed to” pay wages to the plaintiffs commensurate with the position of
Foreman II. Id. (internal quotation marks omitted). The Tyson employees in this
case do not claim that they were improperly classified—say, as a general employee
rather than as a knife-user whom Tyson had agreed to pay more generously. They
argue instead that the amount of time for which they were paid based on their
classification was insufficient under the FLSA. That the employees might have been
underpaid according to the terms of the federal statute, however, does not establish
that Tyson previously had agreed to pay the compensation that they seek, such that
the employees may recover under the Collection Act.



                                         -7-
       Another Nebraska decision, Freeman v. Central States Health and Life Co.,
515 N.W.2d 131 (Neb. Ct. App. 1994), illustrates the shortcoming of the district
court’s approach. In Freeman, two employees of Central States brought a claim for
unpaid overtime under the Collection Act, arguing that the provisions of the FLSA
were implied terms of their employment agreement, and that they were “entitled to
receive compensation for all hours worked” under the Collection Act. Id. at 133
(internal quotation omitted). The Nebraska Court of Appeals rejected the claim,
saying “we have found no Nebraska law, including the Nebraska Wage Act, requiring
the payment of compensation for overtime where there is no previous agreement
regarding overtime compensation.” Id. at 134-35. With respect to the FLSA, the
court noted that the employees “can file an FLSA claim in a Nebraska state court, see
§ 216(b), but a party cannot use the Nebraska Wage Act to enforce rights that it may
possess under the FLSA.” Id. at 135. So too here.

       The employees advert to a proposition that “‘laws which subsist at the time and
place of the making of a contract, and where it is to be performed, enter into and form
a part of it, as if they were expressly referred to or incorporated in its terms.’” Stoller
v. State, 105 N.W.2d 852, 858 (Neb. 1960) (quoting Van Hoffman v. City of Quincy,
71 U.S. 535, 550 (1866)). This principle has application in cases arising under the
Contracts Clause of Article I, Section 10, of the Constitution, for a State cannot grant
a valuable right and then impair it by subsequent legislation. E.g., Wood v. Lovett,
313 U.S. 362, 370-72 (1941). And there is authority in Nebraska that prevailing
judicial constructions or statutory definitions of terms in an insurance policy become
part of an insurance contract when it is executed. Turpin v. Standard Reliance Ins.
Co., 99 N.W.2d 26, 36 (Neb. 1959); Reinsch v. Pac. Mut. Life Ins. Co., 299 N.W. 632,
635 (Neb. 1941).

     But the question here is the meaning of the Nebraska Collection Act and
whether a wage is “previously agreed to” if a federal statute requires payments to
which the parties did not agree. Freeman says that an employee cannot use the

                                           -8-
Collection Act to enforce rights that he may possess under the FLSA. The Supreme
Court of Nebraska has distinguished Freeman on the ground that city
ordinances—“unlike the FLSA”—can be the basis of an agreement by a city, but the
court has not endorsed the broad proposition urged by the employees here. Prof.
Firefighters Ass’n of Omaha, Local 385 v. City of Omaha, 860 N.W.2d 137, 143-44
(Neb. 2015); see Hawkins, 627 N.W.2d at 958. We conclude that Freeman is the best
evidence of Nebraska law, and we therefore apply it. See Swope v. Siegel-Robert,
Inc., 243 F.3d 486, 496 (8th Cir. 2001).

       The employees advance a different rationale for affirming the judgment under
the Collection Act: They argue that Tyson did previously agree to pay the wages at
issue in this case. Their contention is based on the following documents: a 1998
memorandum from Iowa Beef Processors, Tyson’s predecessor, Tyson’s 2010
memorandum updating its K-code policy, a document entitled “Team Members’ Bill
of Rights,” a document that appears to be an excerpt from a Tyson human resources
manual entitled “Hours of Work and Overtime,” and an alleged agreement between
Tyson’s predecessor and the Department of Labor. These documents, however, are
insufficient to show an agreement between Tyson and the employees to pay the wages
at issue.

       Invoking the 1998 memorandum, the employees focus narrowly on the
following language: “Effective immediately IBP is voluntarily implementing a
procedure to compensate employees for the reasonable time associated with certain
pre and post shift activities.” The rest of the document, however, undermines the
claim that the memorandum was an agreement to pay the disputed wages, because it
specifies that compensable time for pre- and post-shift activities will be limited to
four minutes. The memorandum does not establish an agreement to pay for the
additional time beyond four minutes that underlies the district court’s award under the
Collection Act.



                                         -9-
       The employees next cite a memorandum that Tyson sent its employees in 2010
detailing changes to its K-code policy. The employees urge that this document is
evidence of an agreement that Tyson would “‘accurately’ compensate employees for
the ‘reasonable time associated with certain pre and post-shift activities.’” Appellees’
Br. 25. This memorandum, of course, could not signify an agreement for the years
before 2010 as to which the district court awarded damages. The terms of the
memorandum, moreover, did not provide that the company would pay for unspecified
“reasonable time.” The memorandum explains that Tyson would pay for twenty to
twenty-six minutes of K-code time in addition to gang time for all employees, while
also stating that Tyson “believes time associated with these activities is paid
appropriately or may be de minimis and therefore not compensable.”

       The employees also rely on a document entitled “Tyson Foods, Inc. Team
Members’ Bill of Rights.” They point to Section 4, “Right to Compensation for Work
Performed.” This section says that “[e]very Team Member has the right to expect
payment of wages owed for work performed by the Team Member,” and that “Tyson
Foods shall pay all wages due to its Team Members.” The document specifically
states, however, that it “is not a contract of employment,” and the “Bill of Rights”
thus cannot an establish an agreement to pay particular wages.

       Similarly problematic is the employees’ reliance on Tyson’s human resources
manual. The document contains the following “guideline”: “Team Members who
suffer or are permitted to suffer work, even though the employer has not specifically
ordered them to work or have not acted to stop such work, shall be compensated.”
As with the Bill of Rights, however, the document disclaims any intent to create an
agreement to pay wages for a specific amount of time. In a section entitled
“PURPOSE,” the document provides: “The purpose of this policy is to provide
general guidelines for work hours and overtime. It is not the intent of this policy to
set forth the work hours, shift starting times, or premium hour payments, as they may
vary by department and location for hourly paid team members.”

                                         -10-
       Finally, the employees cite an alleged agreement between Tyson’s predecessor
and the Department of Labor to compensate employees for donning and doffing
activities. This “agreement,” memorialized in a letter sent by the Department to
Tyson’s predecessor in April 1999, likewise does not support the employees’ claim.
The letter states that “the Department agrees that four minutes per day is sufficient
to pay employees for the period October, 1994 to the present.” There is no evidence
to support an agreement between Tyson and the Department to pay for more than four
minutes per day to compensate for the activities at issue in this case.

      The employees’ claim under the Collection Act thus fails as a matter of law,
because they have not presented sufficient evidence that Tyson previously agreed to
pay the wages to which the employees claim entitlement. As in Freeman, the
employees had an option to file a claim under the FLSA, but they “cannot use the
Nebraska Wage Act to enforce rights that [they] may possess under the FLSA.” 515
N.W.2d at 135-36. Tyson was therefore entitled to judgment on the state law claim.
Tyson separately raises substantial issues concerning certification of the class, see
Tyson Foods, Inc. v. Bouaphakeo, 135 S. Ct. 2806 (2015) (order granting petition for
writ of certiorari), but we need not address other assertions of error in light of our
conclusions on the points discussed.

                                  *      *       *

       For the foregoing reasons, the judgment of the district court is reversed, and
the case is remanded with directions to enter judgment for Tyson.
                      ______________________________




                                        -11-
