In Tyson Foods, Inc. v. Bouaphakeo, the U.S. Supreme Court held that statistical or representative evidence could be used by a class of employees to prove liability for an employer’s failure to pay them for donning and doffing protective gear in violation of the Fair Labor Standards Act (FLSA). In this class action lawsuit, workers at a meat-processing plant alleged that Tyson failed to give them credit for time spent donning and doffing protective gear and walking to and from their production line. The workers were claiming overtime pay as a result of all hours worked over 40 hours a week when adding this additional time.
A jury found for the workers and awarded the class about $2.9 million in unpaid wages. At trial, the court allowed the employees to use representative or an average sample of time it took workers in donning and doffing their gear rather than requiring each class member to present individualized proof of time spent. Plaintiffs’ expert testified at trial that he determined the average time it took 53 of the 3,344 workers in the class to do these tasks and concluded that an average of 18 minutes a day needed to be added to weekly hours worked for one department and 21.25 minutes a day for another department. Plaintiffs claimed it could be presumed that all class members were identical to the statistical average and that the workers were owed overtime for all time over 40 hours when adding the representative time to the weekly time worked.
Tyson argued that the trial court erred because the time per employee to perform those tasks was so different that they cannot rely on averages and the class should not have been certified under Federal Rule of Civil Procedure 23(b)(3). The U.S. Supreme Court disagreed and found that a categorical exclusion of the use of samples made little sense. It held that it would allow statistical samples to establish liability on a case by case basis — depending on the purpose for which the evidence was being introduced and on the elements of the underlying action. In reaching this decision, the Supreme Court highlighted the employer’s violation of its duty to maintain records of this time. Because there was a gap in employer required records of work-time, each employee could have relied on the average sample of time to prove liability and therefore the representative evidence could be used on a class-wide basis.
The Supreme Court explained that its holding was consistent with its 2011 decision in Wal-Mart Stores, Inc. v. Dukes as that case involved 1.5 million employees who were not similarly situated because they were at different stores and under different policies. The class in Dukes failed to meet even Rule 23(a)’s basic requirement that class members share a common question of fact or law. On the contrary, in Tyson, the employees worked out of the same facility, did similar work, and were under the same policies for pay.
While refusing to establish a general rule governing the use of such evidence, the Supreme Court widened the potential liability for employers in defending class action suits by allowing representative samples. This is particularly the case where there are record keeping violations by the employer in the wage and hour area. Employers should make sure that they review their practices and procedures and confirm that they are maintaining appropriate records of time for all employees.