On November 10, 2015, the United States Supreme Court heard argument in Tyson Foods v. Bouphakeo, a case that has the potential to reshape the contours of when employees may bring class claims against their employer. Tyson is a Fair Labor Standards Act (FLSA) collective action involving almost 3,000 employees at Tyson Foods' slaughterhouse in Iowa. The employees claim that Tyson unlawfully failed to pay for the time required to put on and take off ("don and doff") sanitary and protective gear. The employees either worked in 400 different positions (according to Tyson) or in substantially similar jobs (according to the employees). At trial, the employees' expert proposed a damage calculation based on the average time employees spent donning and doffing the gear (not all employees had to wear protective gear) and walking to their work stations.
The jury found in favor of the class – to an extent. The jury awarded one-half of what the employees' counsel requested, and that was the focus of the arguments.
Tyson's lawyer argued: 1) that the use of the average donning and doffing time was an inappropriate way to establish a class of employees in different positions; and 2) because the award provided no guidance regarding which employees should receive damages and how much damages they should get, employees who were not harmed would receive damages. The employees' attorney argued that: 1) the jobs were similar; 2) the average merely provided a "just and reasonable inference" on which the damage award could be calculated; 3) the ambiguity regarding how the award should be distributed was the result of various strategic decisions made by Tyson's lawyers and Tyson should not be permitted to avoid the consequences of that strategy; and 4) the trial judge will be able to determine fairly how the award should be distributed.
It is sport among lawyers and the press to handicap which party will prevail based on the questions asked during oral argument. The vast majority of commentators speculate that the employees will prevail. These opinions are based largely on a statement by Justice Kennedy, who is often the critical swing vote, to Tyson's lawyer that "I just do not understand your arguments."
Even if that prediction is correct, a more difficult question remains: What will be the Court's reasoning behind the decision? Questions by the Justices indicate that the Court may issue a decision that does not have wide-ranging implications regarding class certification, perhaps by focusing on Tyson's failure to object to the jury instructions or the special verdict form, or its failure to request a bifurcated trial. Or, the Court could rule that this case is nothing more than an extension of the Supreme Court's 1946 decision in Anderson v. Mt. Clemen's Pottery. Mt. Clemen's established that, if an employer fails to keep accurate time records, an employee is only required to produce evidence sufficient to create a fair and reasonable inference regarding the time worked (in this case, the average time spent donning and doffing).
Although no one can state with certainty how the Court will rule, it is clear that the recordkeeping issue will continue to bedevil employers. It does not matter if time was not recorded based upon the employer's good faith belief that the time was not compensable. The employer, in the words of Justice Alito, "is stuck with the choice it makes."