On March 22, 2016, in Tyson Foods, Inc. v. Bouaphakeo, the United States Supreme Court upheld class certification — and a $2.9 million jury verdict — in a donning and doffing case brought under Iowa law and the federal Fair Labor Standards Act (FLSA). Departing from recent decisions tightening class certification standards, the Supreme Court held that representative, statistical evidence may be used to certify a class action if the same sampling could be used to establish liability in an individual action.
The employees worked in Tyson’s pork processing plant. Because of the hazardous nature of their jobs, each had to don and doff protective gear, but the type of gear and time it took to put it on and take it off varied by department and individual. Tyson compensated some employees for four to eight minutes of donning and doffing time per day, while paying others nothing for such time. This policy resulted in the instant lawsuit, with the employees’ alleging that Tyson failed to pay them overtime for hours worked in excess of 40 per week.
Because Tyson did not keep records of time employees spent donning and doffing, employees used expert testimony to establish the average time spent putting on and taking off protective gear. After examining and analyzing 744 videotaped observations, the employees’ expert calculated an average donning and doffing time per day of 18 minutes in the cut and retrim departments and 21.25 minutes in the kill department. Then, using the time records Tyson did have for each employee, another expert calculated whether each class member should have been paid overtime in any given week and, if so, how much. Tyson neither objected to the employees’ experts’ methodology nor offered any rebuttal expert. Instead, it argued that the variation in time for donning and doffing among individuals made the claims too speculative for classwide recovery. The district court and the jury disagreed: the district court certified the class, and the jury awarded $2.9 million to the employees, which was significantly less than the amount determined by the employees’ experts. The Eighth Circuit Court of Appeals affirmed.
On appeal to the Supreme Court, Tyson again argued that the class never should have been certified because the donning and doffing times varied by individual. For a class to be certified, Federal Rule of Civil Procedure 23(b)(3) requires that “questions of law or fact common to class members predominate over any questions affecting only individual members.” Tyson argued that person-specific inquiries predominated in this case because, for any employee to recover, he had to prove that the amount of time donning and doffing, in addition to his regular hours, totaled more than 40 hours per week. Employees countered that such individual inquiries were unnecessary because its expert had provided an average donning and doffing time per department.
The Supreme Court sided with the employees. Writing for the majority, Justice Kennedy explained that the critical question is “whether the sample at issue could have been used to establish liability in an individual action.” Here, the Supreme Court said, it could. The employees offered the sample to “fill an evidentiary gap created by the employer’s failure to keep adequate records.” And if the employees had litigated their cases individually, “each employee likely would have had to introduce [the] study to prove the hours he or she worked.”
The case is not yet over. Tyson also argued that awarding damages based on averages would result in payments to employees who had not been injured, i.e., those who worked less than 40 hours a week even including donning and doffing time. The Supreme Court said that this issue could not be decided until the district court approved a plan to allocate the awarded damages among the class members. In a concurring opinion, Chief Justice Roberts expressed doubt that it was possible, given the unspecific jury verdict, to design an allocation plan that awarded damages only to those employees who had actually been injured.
Bottom line: Although the Supreme Court’s decision is important, one should be careful not to read too much into it. Despite requests from both parties, the Court explicitly refused to create any bright line rule: “Whether a representative sample may be used to establish classwide liability will depend on the purpose for which the sample is being introduced and on the underlying cause of action. In FLSA actions, inferring the hours an employee has worked from a study such as [the employees’ experts’] has been permitted by the Court so long as the study is otherwise admissible.”