Indeed, in two cases where the employers had incentive programs similar to Defendants', the courts utilized the framework when determining damages. See Garcia v. Tyson Foods, Inc., 890 F.Supp.2d 1273, 1284 (D.Kan.2012) ; Alvarez v. IBP, Inc., No. 98 Civ. 5005, 2001 WL 34897841, at *7 (E.D.Wash. Sept. 14, 2001), reversed on other grounds by, 339 F.3d 894 (9th Cir.2003).D. Defendants' Incentive Program
The trial court found, among other things, that the time spent donning and doffing protective gear pre-and post-shift was work and required compensation under the FLSA. Alvarez v. IBP, Inc., No. CT–98–5005, 2001 WL 34897841, at *13–14 (E.D.Wash. Sept. 14, 2001). It also found that time spent walking to and from the locker room and work station, time spent donning and doffing at the meal and rest break, and time devoted to waiting for, preparing, handling, replacing, and washing equipment was compensable.
These activities have been the subject of previous cases with Tyson's predecessor IBP as defendant. See, e.g., Reich v. IBP, Inc., 820 F.Supp. 1315 (D.Kan.1993), aff'd and remanded,38 F.3d 1123 (10th Cir.1994), remanded toCivil Action No. 88–2171, 1996 WL 445072 (D.Kan. Jul. 30, 1996), aff'd sub nom., Metzler v. IBP, Inc., 127 F.3d 959 (10th Cir.1997); Alvarez v. IBP, Inc., No. CT–98–5005–RHW, 2001 WL 34897841 (E.D.Wash. Sept. 14, 2001), aff'd in part and rev'd in part,339 F.3d 894 (9th Cir.2003), aff'd,546 U.S. 21, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005), remanded to2005 WL 3941313 (E.D.Wash. Dec. 20, 2005).
Tyson's history of litigation as reflected in the case law and public record shows that there is no dispute that the four minutes paid to Tyson employees at its unionized plants did not, and does not, include, at the least, walking time. Alvarez v. IBP, Inc., 2001 WL 34897841, *2, n. 3, *6 [ (E.D.Wash.2001) ] (characterizing minutes as “clothes changing”). It is undisputed that Tyson never increased the amount of clothes-changing time at the Dakota City plant above four minutes.
Because the CAN-SPAM Act provides that this Court may assess "reasonable costs, including attorneys' fees," 15 U.S.C. § 7706(g)(4), this Court may assess litigation costs that may not otherwise be claimed under § 1920, under the rubric of attorneys fees, and not as § 1920 costs. See Alvarez v. IBP, Inc., 2001 U.S. Dist. LEXIS 25341 at *30-41 (E.D. Wash. 2001). This Court follows the example set by its sister court in the Eastern District of Washington and finds that all costs which normally would be billed to a paying client may be justifiably included in the computation of reasonable attorney fees and costs in this matter.
However, Plaintiffs' litigation-related costs may be claimed under the rubric of attorneys fees, and not § 1920 costs. See Alvarez v. IBP, Inc., 2001 U.S. Dist. LEXIS 25341 at *30-41 (E.D. Wash. 2001). Defendant's objections to Plaintiffs' costs are based on cases where the court was charged with the task of determining whether the claimed costs are § 1920 costs, and thus do not control this analysis.