Supreme Court Decides Tyson Foods, Inc. v. Bouaphakeo
On March 22, 2016, the Supreme Court decided Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, holding that a court may properly use representative, statistical evidence to certify a class action where each individual plaintiff could have relied upon the same sampling to establish liability in an individual action.
The Fair Labor Standards Act (FSLA) requires employers (1) to pay employees for activities that are “integral and indispensable” to their regular work and (2) to make, keep, and track the “wages, hours, and other conditions and practices of employment.” Plaintiffs worked in defendant Tyson’s pork-processing plant and filed suit under the Fair Labor Standards Act (FSLA) and Iowa state law seeking overtime pay for time they spent donning and doffing protective gear, claiming that donning and doffing their protective gear was integral and indispensable to their work. The claim related only to overtime, meaning that to recover, each employee had to demonstrate that the employee worked more than 40 hours a week, including time donning and doffing. Because Tyson did not track or record the donning and doffing time, plaintiffs relied on “representative evidence” to prove their time, including employee testimony, videos of the donning and doffing, and a study by an industrial relations expert that included analysis of over 744 videotaped observations and averaged the time spent donning and doffing.
Plaintiffs sought certification as collective action under the FLSA and as a Rule 23 class action for the state law claim. (By agreement of the parties, the Court made no distinction between the standard for Rule 23 class certification and FLSA collective action certification.) Tyson challenged plaintiffs’ use of the representative evidence to support class certification, arguing that “person-specific inquiries into individual work time predominate over the common questions” and made class certification inappropriate. The court certified the class, and a jury subsequently awarded class members $2.9 million. The Eighth Circuit affirmed.
The Supreme Court affirmed, holding the district court properly considered the representative evidence in ruling on class certification. The Court declined to announce a broad rule addressing representative evidence, instead stating that “[w]hether and when statistical evidence can be used to establish classwide liability will depend on the purpose for which the evidence is being introduced” and the underlying elements of the claim. In the case before it, the Court observed that “[o]ne way for respondents to show … that the sample relied upon here is a permissible method of proving class-wide liability is by showing that each class member could have relied on that sample to establish liability if he or she had brought an individual action.” Given Tyson’s failure to abide by its statutory duty to keep proper records, even if each employee had proceeded with an individual action, the employee would likely have had to fill an “evidentiary gap” and introduce this same study to demonstrate the hours worked. “If the sample could have sustained a reasonable jury finding as to hours worked in each employee’s individual action, that sample is a permissible means of establishing the employees’ hours worked in a class action.”
The Court also rejected Tyson’s argument that Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 388 (2011) precluded class certification. In Wal-Mart, unlike the case before it, plaintiffs “proposed to use representative evidence as a means of overcoming [the] absence of a common policy,” and would have had little to no role in an individual suit.
Justice Kennedy delivered the opinion of the Court, joined by Justices Ginsburg, Breyer, Sotomayer, and Kagan. Chief Justice Roberts filed a concurring opinion, joined by Justice Alito in part. Justice Thomas filed a dissenting opinion, joined by Justice Alito.
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