Tyson Foods v. Bouaphakeo: Representative Proof in Wage Classes
In Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036 (2016), the Supreme Court held that representative proof from a sample, based on an expert witness’s estimation of average time that employees spent donning and doffing protective gear, could be used to show predominance of common questions of law or fact for purposes of class certification. The Court also reaffirmed the long-held FLSA principle that where an employer fails to keep accurate time records, an employee can meet her burden by providing evidence showing hours worked as a matter of just and reasonable inference.
The plaintiffs worked for Tyson Foods. These employees worked in the kill, cut, and retrim departments of a Tyson’s pork processing plant in Iowa. Their work required them to wear protective gear, but the exact composition of the gear depended on the tasks a worker performed on a given day. Tyson compensated some, but not all, employees for this donning and doffing, and did not record the time each employee spent on those activities.
The employees filed suit, alleging that the donning and doffing were integral and indispensable to their hazardous work and that Tyson’s policy not to pay for those activities denied them overtime compensation required by the Fair Labor Standards Act of 1938 (FLSA). They also raised a claim under an Iowa state wage law.
The employees sought certification of their state claims as a class action under Federal Rule of Civil Procedure 23 and certification of their FLSA claims as a “collective action” under 29 U.S.C. § 216. Tyson objected to certification of both classes, arguing that, because of the variance in protective gear each employee wore, the employees’ claims were not sufficiently similar to be resolved on a classwide basis.
The District Court concluded that common questions, such as whether donning and doffing protective gear was compensable under the FLSA, were susceptible to classwide resolution even if not all of the workers wore the same gear.
To recover for a violation of the FLSA’s overtime provision, the employees had to show that they each worked more than 40 hours a week, inclusive of the time spent donning and doffing. Because Tyson failed to keep records of this time, the employees primarily relied on a study performed by an industrial relations expert, Dr. Kenneth Mericle. Mericle conducted videotaped observations analyzing how long various donning and doffing activities took, and then averaged the time taken to produce an estimate of 18 minutes a day for the cut and retrim departments and 21.25 minutes for the kill department. These estimates were then added to the timesheets of each employee to ascertain which class members worked more than 40 hours a week and the value of classwide recovery.
Tyson argued that the varying amounts of time it took employees to don and doff different protective gear made reliance on Mericle’s sample improper, and that its use would lead to recovery for individuals who, in fact, had not worked the requisite 40 hours. The jury awarded the class about $2.9 million in unpaid wages. The Eighth Circuit affirmed the judgment and the award. 136 S.Ct. 1036 at 1039-45.
The Court’s Decision
The Supreme Court affirmed.
First, the Court observed that before certifying a class under Rule 23(b)(3), a district court must find that “questions of law or fact common to class members predominate over any questions affecting only individual members.” Fed R. Civ. R. 23(b)(3). In Tyson Foods, the parties agreed that the most significant question common to the class was whether donning and doffing protective gear is compensable under the FLSA. Tyson claimed, however, that individual inquiries into the time each worker spent donning and doffing predominated over that common question. The employees argued that individual inquiries were unnecessary because it could be assumed that each employee donned and doffed for the same average time observed in Mericle’s sample. 136 S.Ct. 1036 at 1045-46.
Second, the Court observed that whether and when statistical evidence like an expert sample could be used to establish classwide liability depends on the purpose for which the evidence is being introduced and on “the elements of the underlying cause of action.” 136 S.Ct. at 1046 (quoting Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011). The Court then reasoned that 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. Thus, the employees could show that Mericle’s 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. 136 S.Ct. at 1046-47.
Third, and perhaps most importantly, the Court discussed how its decision in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946) showed why the sample was permissible under the circumstances in Tyson Foods.
The Court observed that in Mt. Clemens Pottery, where an employer violated its statutory duty to keep proper time records, the Court concluded the employees could meet their burden by proving that they in fact “performed work for which [they were] improperly compensated and … produc[ing] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Id. at 687. In Tyson Foods, similarly, the employees 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 Mericle’s study to prove the hours he or she worked. The representative evidence was a permissible means of showing individual hours worked. 136 S.Ct. at 1046-47.
Fourth, the Court discussed how its holding was consistent with Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). In Dukes, as in Tyson Foods, the underlying question was whether a sample could have been used to establish liability in an individual action. In Dukes, the Court pointed out, the employees were not similarly situated, so none of them could have prevailed in an individual suit by relying on depositions detailing the ways in which other employees were discriminated against by their particular store managers. In contrast, the Tyson Foods employees, who worked in the same facility, did similar work, and were paid under the same policy, could have introduced Mericle’s study in a series of individual suits. 136 S.Ct. at 1048.
The Court went on to address the proposed bright-line rules advocated by the parties and their respective amici. The Court determined that the Tyson Foods case was “no occasion” to adopt broad and categorical rules governing the use of representative and statistical evidence in class actions. Rather, the Court observed, the ability of a party to use a representative sample to establish classwide liability depends on the purpose for which the sample is being introduced and on the underlying cause of action. In FLSA actions, the Court emphasized, inferring the hours an employee has worked from a study such as Mericle’s has been permitted by the Court so long as the study is otherwise admissible. 136 S.Ct. at 1049 (citing Mt. Clemens, 328 U.S. at 687).
Finally, the Court addressed Tyson’s argument that the employees were required to demonstrate that uninjured class members would not recover damages awards. The Court declined to address that question, because the damages awarded by the jury had not yet been disbursed and the record did not indicate how it would be disbursed. 136 S.Ct. at 1049-50.
In sum, the Tyson Foods Court held that where an employer does not keep accurate time records, the employee can provide a reasonable estimate of time worked for purposes of the FLSA. Thus, representative proof from a sample, based on an expert witness’s estimation of average time that employees spent donning and doffing protective gear, could be used to show predominance of common questions of law or fact for purposes of class certification.
The case reaffirmed the important FLSA principle of Mt. Clemens Pottery that when an employer fails to keep proper time records, the employees could meet their burden by proving that they in fact “performed work for which [they were] improperly compensated and … produc[ing] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” 328 U.S. at 687.
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