On March 22, 2016, in a 6-2 decision, the US Supreme Court greenlighted the use of representative evidence in the federal wage and hour class case of Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146. The Court approved the use of statistical averaging of employee donning and doffing time in connection with Fair Labor Standards Act (FLSA) class certification. The opinion discusses several limiting factors that employers will no doubt argue constrains its applicability, especially outside the FLSA context.
The Facts and Lower Court Decisions
The employees worked in a pork processing plant and wore protective gear for certain work. The employer never recorded the “donning and doffing” time (i.e., getting in and out of the gear). Although some employees received donning and doffing compensation, others were only compensated for “gang time” (i.e., work at their stations). The employees sued and, relying on the Supreme Court’s 1956 decision in Steiner v. Mitchell, claimed their donning and doffing time was “”integral and indispensable” to their work, requiring that they be compensated under the FLSA. Because of the absence of employer records, the employees introduced “representative evidence” including employee testimony, donning and doffing videos, and a study in which an industrial expert gave a statistical average of the time spent getting in and out of the protective gear in two different departments. Despite the employer’s argument that the variance in the protective gear employees had to wear made the employees’ claims not sufficiently similar for classwide resolution, the district court found that if it limited the class to employees who were only paid for gang time, “there are more factual similarities than dissimilarities” and certified the class.
After class certification, the case was tried. The employees presented statistical evidence of the average donning and doffing time based on an expert’s review and analysis of 744 videotaped observations of such activity. The employer did not present its own rebuttal expert but argued the employees’ expert had overstated the averages and that the evidence was speculative because of the varying donning and doffing individual times. The jury found the donning and doffing time to be compensable and awarded damages. After unsuccessful post-trial motions, the case proceeded to the Eighth Circuit, which affirmed the district court award and judgment.
The Supreme Court Decision
The Supreme Court agreed to review the case and heard oral argument on November 10, 2015. In March 2016, the Supreme Court affirmed and said the district court did not err in certifying and maintaining the class. The majority opinion declined to establish broad, categorical rules governing when representative and statistical evidence may be used to prove classwide liability, firmly stating that “[a] categorical exclusion of [representative evidence] would make little sense.” Noting that “[a] representative or statistical sample, like all evidence, is a means to establish or defend against liability,” the majority said that “whether and when” such evidence is permissible to establish class liability will depend on the underlying claim elements, the purpose for the evidence’s introduction, and its reliability.
The dissent commented that Supreme Court’s precedent generally prohibits class cases where “an important element of liability depends on facts that vary among individual class members.” The dissent also said that before permitting use of representative evidence, the district court had to “undertake a rigorous analysis” to make sure the representative evidence was “sufficiently probative of the individual issue to make it susceptible to classwide proof.” The dissent even found that the employees’ expert evidence actually “confirmed the inappropriateness of class treatment.”
Implications and Future Fights
It is important for an employer to keep accurate time records. When that does not happen, the employer may face liability exposure for individual employees or a class. With Tyson Foods, the evidentiary recordkeeping gap may ultimately be filled with the representative evidence, at least in FLSA cases. Whether and when courts will allow representative evidence remains to be seen, including whether its use will expand beyond FLSA cases. But Tyson Foods does emphasize the necessary connection between acceptable classwide and individual claim proof. Plaintiffs cannot use representative evidence in a class case if that would not be permissible for an individual’s claim. As for whether Tyson Foods’ unique facts may ultimately result in it having limited impact on most class certification decisions, time will tell. But, for now, one should anticipate significant future fights about the permissibility of representative evidence to raise many arguments, including the individuality of the issue, the lack of susceptibility to common proof, and the absence of reliability of the statistical sample or other representative evidence.