Handing a win to employees in wage-hour class action litigation, the United States Supreme Court ruled, in a 6-2 decision, that a district court did not err in granting certification of a class of Tyson Foods employees who alleged that the employer failed to provide overtime compensation for donning and doffing personal protective equipment (PPE). In this instance, the High Court concluded that the employees could show that an expert witness’ sample was a permissible means of establishing hours worked in a class action by showing that each class member could have relied on that sample to establish liability had each brought an individual action. Because Tyson failed to keep records of this time, the employees primarily relied on a study performed by an industrial relations expert to determine the average time engaged in donning and doffing activities. The representative sample may have been the only feasible way to establish employer liability, observed the Court in Tyson Foods, Inc. v. Bouaphake, in concluding that such evidence cannot be deemed improper merely because the claim is brought on behalf of a class. A jury had awarded the class about $2.9 million in unpaid wages. Representative evidence. The employees in this case sought to introduce the representative sample to fill an evidentiary gap created by the employer’s failure to keep adequate records. Unlike the plaintiffs in Wal-Mart Stores, Inc v. Dukes, where the employees were not similarly situated, the employees here, who worked in the same facility, did similar work, and were paid under the same policy, could have introduced the expert witness’ study in a series of individual suits. Thus, the High Court concluded that its ruling here was in accord with Dukes. Moreover, the Court noted that this case presented no occasion for adoption of broad and categorical rules governing the use of representative and statistical evidence in class actions. Rather, the ability to use a representative sample to establish class-wide liability will depend on the purpose for which the sample is being introduced and on the underlying cause of action.
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