By Ronald Miller, J.D.
A federal district court did not err in certifying (and maintaining) a class of Tyson employees who alleged that the employer failed to compensate them for time spent donning and doffing personal protective equipment (PPE), ruled a divided U.S. Supreme Court, rejecting Tyson’s challenge to the use of representative statistical evidence for purposes of class certification in this wage-hour suit. Because a representative sample may be the only feasible way to establish liability, it cannot be deemed improper merely because the claim is brought on behalf of a class, the High Court majority held. In this instance, 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. Chief Justice Roberts filed a concurring opinion in which Justice Alito joined in part, while Justice Thomas filed a dissenting opinion in which Justice Alito joined (Tyson Foods, Inc. v. Bouaphakeo
, March 22, 2016, Kennedy, A.).
Donning and doffing activities.
Employees at a Tyson pork processing plant alleged that they did not receive statutorily mandated overtime pay for time spent donning and doffing protective equipment. A district court granted certification of a class action after concluding that common questions—such as whether donning and doffing PPE was compensable under the FLSA—were susceptible to classwide resolution, even if not all of the workers wore the same gear. Following a jury trial, the class of employees recovered $2.9 million in compensatory damages from Tyson.
In seeking to reverse the judgment, Tyson made two arguments contesting whether it was proper to permit the employees to pursue their claims as a class. First, it argued the class should not have been certified because the primary method of proving injury assumed each employee spent the same time donning and doffing protective gear, even though differences in the composition of that gear may have meant that, in fact, employees took different amounts of time to don and doff. Second, it argued certification was improper because the damages awarded to the class may be distributed to some persons who did not work any uncompensated overtime. The Eighth Circuit found no error in the district court’s decision to certify the class.
Tyson objected to the certification of the employee’s Iowa law claims as a class action under Rule 23, and their federal claims as a collective action under 29 U.S.C. Sec. 216(b), arguing that because of the variance in the protective gear each employee wore, their claims were not sufficiently similar to be resolved on a classwide basis.
Statistical evidence not challenged.
Because the employer failed to keep records of donning and doffing time, the employees were forced to rely on “representative evidence” derived from a study performed by an industrial relations expert in order to determine the average time engaged in donning and doffing activities. Tyson did not move for a hearing regarding the statistical validity of the employees’ studies under Daubert
v. Merrell Dow Pharmaceuticals, Inc.
, nor did it attempt to discredit the evidence with testimony from a rebuttal expert. Instead, it argued to the jury that the varying amounts of time it took employees to don and doff different protective equipment made the lawsuit too speculative for classwide recovery.
The Eighth Circuit recognized that a verdict for the employees required an inference from their representative proof, but held that this inference is allowable under Anderson v. Mt. Clemens Pottery Co.
The U.S. Supreme Court affirmed that judgment.
Here, the parties did not dispute that there were important questions common to all class members, the most significant of which was whether time spent donning and doffing the required protective gear is compensable work under the FLSA. However, Tyson argued that necessarily person-specific inquiries into individual work time predominate over the common questions raised by the employees’ claims, making class certification improper. Reliance on a representative sample, Tyson argued, absolves each employee of the responsibility to prove personal injury, and thus deprived it of any ability to litigate its defenses to individual claims.
The High Court concluded that the permissibility of a representative or statistical sample turns on the degree to which the evidence is reliable in proving or disproving the elements of the relevant cause of action. The Court would reach too far were it to establish general rules governing the use of statistical evidence, or so-called representative evidence, in all class-action cases. However, in a case where representative evidence is relevant in proving a plaintiff’s individual claim, that evidence cannot be deemed improper merely because the claim is brought on behalf of a class.
Relying on Mt. Clemens
, the Supreme Court explained why the expert’s sample was permissible in the circumstances here. Like the employees in Mt. Clemens
, the employees in this case sought to introduce a representative sample to fill an evidentiary gap created by the employer’s failure to keep adequate records. Had the employees proceeded with individual lawsuits, each employee likely would have had to introduce the study to prove the hours he or she worked. Rather than absolving the employees from proving individual injury, the representative evidence here was a permissible means of making that very showing.
Reliance on the study did not deprive Tyson of its ability to litigate individual defenses. Rather, the employer’s primary defense was to show that the study was unrepresentative or inaccurate. That defense is itself common to the claims made by all class members. Thus, the representative evidence was a permissible means of showing individual hours worked.
In line with Dukes.
Moreover, the High Court determined that this holding was in accord with Wal-Mart Stores, Inc v. Dukes
. First, the Court observed that Dukes
does not stand for the broad proposition that a representative sample is an impermissible means of establishing classwide liability. The underlying question in Dukes
, as here, was whether the sample at issue could have been used to establish liability in an individual action. In contrast to 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. The study here could have been sufficient to sustain a jury finding as to hours worked if it were introduced in each employee’s individual action.
No categorical rule.
Further, the Court observed 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 classwide liability will depend on the purpose for which the sample is being introduced and on the underlying cause of action.
While Chief Justice Roberts joined in the majority’s opinion, he wrote separately to express his concern that the district court may not be able to fashion a method for awarding damages only to those class members who suffered an actual damage. The Chief Justice agreed with Justice Thomas that the decision in Mt. Clemens
does not provide a “special, relaxed rule authorizing plaintiffs to use otherwise inadequate representative evidence in FLSA-based cases.” But he did not read the Court’s opinion to be inconsistent with that conclusion. Rather, he took the Court to conclude that the study constituted sufficient proof from which the jury could find “the amount and extent of each individual employee’s work as a matter of just and reasonable inference.”
Justice Thomas, joined by Justice Alito, filed a dissenting opinion. He contended that this case concerned whether and when class-action plaintiffs can overcome the general rule that prohibits plaintiffs from maintaining a class action when an important element of liability depends on facts that vary among individual class members. Justice Thomas argued that before class-action plaintiffs can use representative evidence in this way, district courts must undertake a rigorous analysis to ensure that such evidence is sufficiently probative of the individual issue to make it susceptible to classwide proof. He argued that the district court did not satisfy that obligation in this case, and its failure to do so prejudiced Tyson at trial. Accordingly, he dissented.