In 6-2 decision, the US Supreme Court rejected a challenge to a jury verdict in Tyson Foods v. Bouaphakeo but declined to impose a broad rule for use of representative evidence.
On March 22, the US Supreme Court affirmed the US Court of Appeals for the Eighth Circuit’s decision in Tyson Foods v. Bouaphakeo,[1] a trial verdict on behalf of a class of workers who sought overtime. The Supreme Court found that plaintiffs could meet their burden to certify a class under Rule 23 in part by using an expert’s statistical analysis that opined on the average amount of time it took class members to don and doff protective gear.[2] According to the Court, the expert evidence prevented individualized issues about the amount of time that class members worked from predominating over the common issues in the case. The Court declined, however, to adopt any “broad rule” regarding the “use in class actions of what the parties call representative evidence.” The Court also declined to rule on the standard for proceeding as a collective action under the Fair Labor Standards Act (FLSA).
Background
Plaintiffs worked in the kill, cut, and retrim departments at a single Tyson Foods meat processing plant, where they slaughtered, trimmed, and prepared hogs for shipment. The plaintiffs filed suit, seeking overtime for the time it took to don and doff required protective gear. They sought to proceed as a collective action under the FLSA and a Rule 23 class action for the claim under Iowa law.
The district court certified a class and collective action of all employees at the facility in question who were paid under Tyson Foods’ “gang time” compensation system—a system that did not pay workers for donning and doffing the protective gear or, at certain times, paid them a set amount for such time without recording the actual time it took to don and doff the gear. The court found that there were common questions susceptible to classwide resolution, including “whether the donning and doffing of [protective gear] is considered work under the FLSA, whether such work is integral and [in]dispensable, and whether any compensation work is de minim[i]s.”[3]
To sustain a claim for overtime, class members were required to show in part that they worked more than 40 hours in a workweek. Plaintiffs offered an industrial relations expert’s study of the average time it took employees to don and doff protective gear for the various tasks in the plant. Plaintiffs hired a separate expert to combine these averages with each worker’s other work time for the week to determine whether each employee worked more than 40 hours for the week. Using this methodology, the plaintiffs’ expert found 212 employees (out of a class of 3,344) who never met the 40-hour threshold and could not recover.
At trial, the jury determined that time spent donning and doffing was compensable work under the FLSA and calculated an aggregate amount of damages to be divided among class members. Significantly, the jury awarded only $2.9 million of the total $6.7 million that the plaintiffs’ experts identified as unpaid compensation based on the average observed donning and doffing time.
The Eighth Circuit agreed with the district court that the class was properly certified and that relying on the expert survey was a permitted inference of hours worked by the class under Anderson v. Mt. Clemons Pottery Co., 328 US 680, 687 (1946).
Tyson Foods raised two issues in its petition for certiorari: (1) whether the requirement of each employee to prove that the amount of time he or she spent donning and doffing protective gear, when added to his or her regular hours, amounted to more than 40 hours in a workweek created individualized issues that predominate over the common ones, and (2) whether a class could be certified if it contains members who were not injured and have no legal right to any damages.
The Supreme Court’s Opinion
The Supreme Court affirmed the Eighth Circuit’s decision, holding that, given the facts and circumstances of this case, the trial court permissibly certified a class action that relied in part on the representative evidence. Justice Kennedy wrote the opinion of the Court for a six-Justice majority.
Before reaching the questions presented, the Court noted that it assumed, without deciding, that “the standard for certifying a collective action under the FLSA is no more stringent than the standard for certifying a class under the Federal Rules of Civil Procedure,” and, therefore, “if certification of respondents’ class action under the Federal Rules was proper, certification of the collective action was proper as well.”[4] The Supreme Court thus did not rule on the standard for when a case may proceed as a collective action under the FLSA.
In addressing the first questions presented, the Court noted that it was undisputed that there were “important questions common to all class members, the most significant of which is whether time spent donning and doffing the required protective gear is compensable work under the FLSA.”[5] The Court focused on whether the requirement of each employee to “prove that the amount of time spent donning and doffing, when added to his or her regular hours, amounted to more than 40 hours in a given week” would predominate over the common...
