In a significant decision for class employment litigation, the U.S. Supreme Court has condoned the use of statistical sampling as a means of establishing liability for unpaid overtime on a classwide basis. Specifically, the divided High Court, in its 6-2 decision in Tyson Foods Inc. v. Bouaphakeo (March 22, 2016), held that a district court did not err when it certified a class of Tyson Foods workers in their suit alleging that the company failed to compensate them for the time they spent donning and doffing personal protective equipment (PPE) before and after their shifts—even though they had relied on “representative evidence" to do so in the absence of concrete records showing how much time they spent engaged in those pre- and post-work activities.
Overtime suit. Workers at a Tyson pork processing plant filed a wage-hour suit, brought as a collective action under the Fair Labor Standards Act and a Rule 23 class action under Iowa wage law, alleging that they weren’t paid their statutorily mandated overtime for time spent donning and doffing PPE. Presuming that it was not compensable work, Tyson didn’t maintain timekeeping records of the donning and doffing time, so the workers were forced to rely on “representative” statistical evidence, derived from a study performed by an industrial relations expert, in order to determine the average time they spent engaged in these activities.
Tyson challenged the use of representative evidence as a basis for certifying the class, noting that the workers didn’t all wear the same protective gear (among other distinguishing factors), so the time spent donning and doffing PPE varied significantly among the putative class members. Reliance on a representative sample, Tyson argued, absolved each employee of the responsibility to prove personal injury and thus deprived the company of its ability to litigate its defenses to individual claims. But a district court certified the class after concluding that common questions—such as whether donning and doffing PPE was compensable under the FLSA in the first place—were nonetheless susceptible of classwide resolution.
Challenge to representative evidence. Ultimately, a jury awarded the class $2.9 million in compensatory damages. Seeking to reverse the judgment, Tyson argued to no avail, both in the Eighth Circuit and before the Supreme Court, that 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. In fact, one worker spent 35 seconds donning his protective gear; another reportedly took 10 minutes to put on his PPE. (Tyson also argued that certification was improper because damages might be distributed to class members who didn’t even work any uncompensated overtime, but the Court deemed this particular line of attack premature and a matter for the district court to grapple with on remand.)
However, the Eighth Circuit found no error. Nor did the Supreme Court majority, which held the employees could establish that the 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 a representative sample may be the only feasible way to establish liability, it could not be deemed improper merely because the claim was brought on behalf of a class, the High Court reasoned. And, while the verdict in the workers’ favor required an inference from their representative proof, such an inference was allowable under the Supreme Court’s 1946 holding in Anderson v. Mt. Clemens Pottery Co. (a case that addressed the use of representative sampling for proving damages, not for purposes of establishing liability, it should be noted).
Reliability factor. 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 High Court said. Relying on Mt. Clemens, it 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.
In line with Dukes. Moreover, the High Court determined that this holding was in accord with Wal-Mart Stores, Inc v. Dukes. It 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.Bouaphakeo’s bottom line: If representative evidence would be relevant for proving a plaintiff’s individual claim, then that evidence can’t be deemed improper merely because the claim is brought on behalf of a class. Importantly, though, the decision was a relatively narrow one. While the Court refused to rule out completely the use of representative or statistical evidence in class action cases, as Tyson had hoped, it did not condone its use willy-nilly. The Court said it would reach too far were it to establish general rules governing the use of such evidence in all class action cases. Rather, the ability to use a representative sample to establish classwide liability will depend on a case-by-case analysis of the underlying cause of action and the purpose for which the sample is being introduced.
A few lessons. While the Supreme Court’s decision was a win for the plaintiffs’ bar, it does provide a few nuggets of wisdom for employers hoping to avoid Tyson’s fate:
In a dissenting opinion, Justice Thomas noted with disfavor that employers were faced with the “untenable” prospect of “track[ing] any time that might be the subject of an innovative lawsuit.” A hassle, to be sure, but the burden would have proven worth it for Tyson here. The Court was swayed by the fact that the plaintiffs were left with no other means of showing their hours worked but to use the statistical sampling. The proper time records could have allowed Tyson to argue for the right to defend the claims individually, aiding its bid to defeat class certification.
Tyson may have committed a strategic blunder when it neglected to challenge the class expert’s representative evidence early on by way of the Federal Rules of Evidence. Had it attacked the expert’s methodology, it might have been able to argue successfully that the representative evidence was inadmissible under Daubert, even in an individual action—thereby leaving the plaintiffs unable to make the requisite showing for class purposes either.
The majority left the district court to tackle the question “of great importance” of what to do about class members who had not worked any unpaid donning and doffing time, and therefore suffered no injury. But Chief Justice Roberts wrote a separate concurring opinion to emphasize the import of the matter and to note that an uninjured plaintiff presents challenges to Article III jurisdiction. The message here is that the “uninjured party” issue remains a fertile defense for employers seeking to at least narrow a class, if not fend off certification altogether.