April 7, 2016, Trial News
Supreme Court allows statistical sampling in unpaid overtime case
Employees at a food processing plant bringing a class action for unpaid overtime wages may rely on a statistical sample to show the number of overtime hours worked, the U.S. Supreme Court has ruled. The employees of Tyson Foods, Inc., claimed that they were owed overtime pay under the Fair Labor Standards Act (FLSA) for the time they took to put on and remove required protective gear—known as “donning and doffing.”
Employees at a food processing plant bringing a class action for unpaid overtime wages may rely on a statistical sample to show the number of overtime hours worked, the U.S. Supreme Court has ruled. The employees of Tyson Foods, Inc., claimed that they were owed overtime pay under the Fair Labor Standards Act (FLSA) for the time they took to put on and remove required protective gear—known as “donning and doffing.” After a jury awarded the class $2.9 million in compensatory damages, Tyson Foods appealed, arguing that the class should not have been certified because the representative sample used to show how many hours were spent donning and doffing did not consider individual differences that would affect the actual amount of hours for each class member. The Eighth Circuit upheld the verdict, and the Supreme Court affirmed. Justices Clarence Thomas and Samuel Alito dissented. (Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146 (U.S. Mar. 22, 2016).)
The employees work at a pork processing plant in Iowa, where they must wear protective equipment to perform their jobs slaughtering pigs and preparing meat for shipment. Following a federal court injunction in 1998, Tyson Foods started compensating all workers for the donning and doffing time at its decided rate of four minutes per day. Almost a decade later, the company changed its policy and compensated only some workers for between four and eight minutes of donning and doffing time per day.
Under the FLSA, employers must pay their employees for activities that are “integral and indispensable” to their work, and employers must keep records of their employees’ hours. The employees in this case argued that the protective equipment was integral and indispensable to their work and that donning and doffing the equipment occurred beyond their 40-hour workweek, making the extra time compensable as overtime.
At trial, the parties stipulated that certain protective equipment was compensable under the FLSA, but Tyson Foods disputed whether other protective equipment was included in that category, whether donning and doffing during meal breaks was compensable, and the total amount of unpaid overtime. There were no records of how much time each class member spent donning and doffing every day, so the plaintiffs introduced a study conducted by industrial relations expert Kenneth Mericle, who videotaped 744 instances of donning and doffing at the plant and extrapolated an estimated average time—18 minutes per day for employees in the “cut and re-trim” departments and 21.25 minutes per day for those in the “kill” department. A second expert used Mericle’s findings and other timekeeping records to determine how many uncompensated overtime hours the employees worked.
The jurors found that the employees should be awarded overtime for donning and doffing at the start and end of the workday but not during meal breaks.
On appeal, Tyson Foods did not challenge Mericle’s study as admissible evidence; instead, it argued that the class should not have been certified because of the variations in what overtime each employee may have worked. The Court found that the class could rely on Mericle’s study because each class member could have—and likely would have—introduced the study in individual lawsuits to establish Tyson Foods’s liability since the company failed to keep donning and doffing records. Allowing the employees to submit the representative sample to establish their common claims did not prevent Tyson Foods from disputing its results.
The Court also was not persuaded by Tyson’s argument that Wal-Mart v. Dukes (564 U.S. 338 (2011)) should prevent class certification in this case: “Wal-Mart does not stand for the broad proposition that a representative sample is an impermissible means of establishing classwide liability.” The representative sample from that case, which relied on depositions from some employees about discrimination they suffered individually, differed from Mericle’s sample because the Wal-Mart plaintiffs could not establish a common question of fact or of law since class members would not have been able to use the sample to prove liability in individual lawsuits against the company.
The Court, however, refused to go so far as to create general rules for using statistical evidence in all class actions, stating that “whether and when statistical evidence can be used . . . will depend on the purpose for which the evidence is being introduced and on ‘the elements of the underlying cause of action.’” The Court also noted that not every representative sample provided in an FLSA case would necessarily be admissible and that the ability to use such evidence in other cases would be a fact-specific determination. But, once a court does admit such evidence, it is up to the jury to decide whether the sample is persuasive.
Scott Michelman, an attorney for Public Citizen in Washington, D.C., which represented the employees, said that the decision is an important victory for workers. “The Court has signaled that the Mt. Clemens rule [from the 1946 case Anderson v. Mt. Clemens Pottery Co.] that plaintiffs may prove their time worked by ‘just and reasonable inference’ through representative proof when their employer failed to keep records is alive and well. And the decision affirmed that employees may prove their time through this method for liability or damages,” Michelman said.
The decision also protects the rights of class action plaintiffs in general. “The Court rejected several arguments that would have cut back on the availability of the class action vehicle for plaintiffs,” Michelman said. “For instance, defendants have for years been trying to limit plaintiffs’ ability to certify classes based on Wal-Mart, but the Court has made clear that some types of aggregate proof are permissible in a class action if the underlying substantive law allows such an inference. And the Court held that class action plaintiffs are entitled to use the same proof they would have used if they brought suits as individuals.” Michelman also noted that the Court rejected a more expansive reading of its 2013 decision in Comcast v. Behrend: “Even though the Court did not discuss Comcast by name, its discussion of predominance undercuts corporate defendants’ argument that class actions are precluded without a class-wide measure of damages. If one or more central issues are common to the class and they predominate, the class can be certified even if other matters such as damages are peculiar to some individual class members.”