On March 22, 2016, the U.S. Supreme Court issued its highly-anticipated decision in Tyson Foods, Inc. v. Bouaphakeo, a collective action brought under the overtime pay requirements of the Fair Labor Standards Act (“FLSA”). The named plaintiffs in Tyson Foods were hourly workers at a Tyson pork processing plant who alleged that Tyson failed to compensate its employees for time spent donning and doffing protective equipment and walking to and from their work stations. The district court certified the case as an FLSA collective action.
In order to recover for a violation of the FLSA’s overtime provision, the employees had to show that they each worked more than 40 hours per week, inclusive of donning and doffing time. To do so, because Tyson failed to keep time records related to donning and doffing, the employees primarily relied on a study performed by an “industrial relations expert,” which consisted of conducting videotaped observations analyzing how long various donning and doffing activities took, averaging the time taken in order to produce an estimate of the number of minutes per day that were spent on these activities, and then adding that average time to the timesheets of each employee to ascertain which class members worked more than 40 hours per week and the value of the class-wide recovery. After the jury returned a verdict of $2.9 million, Tyson moved to set aside the verdict, arguing that individual variations in the donning and doffing time meant that the class should not have been certified under Federal Rule 23(b)(3)’s “predominance” requirements. Both the district court and the Eighth Circuit disagreed with Tyson and upheld the verdict.
Before the Supreme Court, Tyson – along with several amici – argued for a categorical exclusion of representative or statistical evidence in collective action cases. The Court rejected this argument, holding that a categorical rule one way or the other was inappropriate because the use of such evidence to establish class-wide liability would depend on the purpose for which the evidence is being introduced and the elements of the underlying causes of action. The Court held that the key questions is whether “each class member could have relied on [the statistical evidence] to establish liability if he or she had brought an individual action” and, if so, “that [evidence] is a permissible means of establishing the employees’ hours worked in a class action.” The Court concluded that this test was met in the case before it because, under the FLSA, where an employer has not complied with its statutory obligation to keep proper records, and an employee produces sufficient evidence to show the amount and extent of uncompensated work “as a matter of just and reasonable inference,” the employer must then produce evidence to negate that inference.
It is important to note that the Court’s decision in Tyson Foods does not categorically approve the use of statistical evidence generally; the Court expressly stated that the question requires a case-specific inquiry. Nevertheless, the Tyson Foods decision will likely play an important role in FLSA collective action certification disputes moving forward.
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