Tyson Foods v. Bouaphakeo: High Court Allows Representative Evidence to Prove Class Allegations
On March 22, 2016, the United States Supreme Court upheld class certification and damages awarded to a class of plant workers alleging off-the-clock donning and doffing. Tyson Foods v. Bouaphakeo, __ S.Ct. ___ (2016). In reaching its decision, the Supreme Court held that representative statistical evidence may be used to fill an evidentiary gap created by employer’s failure to keep records when that same evidence could have been used by a class member to prove liability in an individual action.
Tyson Foods employees filed suit alleging that the employer required them to don and doff protective gear off-the-clock, which was integral and indispensable to their work; and as such, they were entitled to overtime compensation for this time under the Fair Labor Standards Act of 1938. At the trial level, employees relied on representative evidence, including testimony, video recordings of the donning and doffing at the plant, and a study performed by an industrial relations expert to prove class-wide injury. The expert calculated an average amount of time spent donning and doffing based on his observations and added the amount to time records that did not capture the time it took for employees to don and doff. The District Court certified the class. A jury found in favor of the employees, awarding $2.9 million in damages.
On appeal to the Supreme Court, Tyson advanced two arguments: (1) class certification was improper because the primary method of proving injury, through representative evidence, assumed that each putative class member sent the same amount of time donning and doffing when in fact employees may have spent different amounts of time to don and doff; and (2) a class should not be certified when some of the class members did not suffer injury and therefore have no right to damages.
The Supreme Court found that use of representative evidence was appropriate to fill an evidentiary gap created by an employer’s failure to keep adequate records when that same evidence could have been used by a class member to prove liability in an individual action. The lack of information regarding the time each individual employee spent donning and doffing due to Tyson’s failure to keep adequate records was critical to the Court’s decision. Nevertheless, the Court stopped short of making representative evidence always acceptable to establish class-wide liability. Holding that acceptance of representative evidence ultimately depends on the unique purpose for which the evidence is being introduced.
The Court held that it was premature to rule on the second argument advanced by Tyson because the damages award had not yet been disbursed. However, the Court indicated that representative statistical evidence could be used to determine which employees suffered an injury, and which did not.
This decision is a setback for employers. Prior to Tyson Foods, employers could rely on Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011), to argue against the use of representative evidence to prove a class-wide injury. Further, this case also underscores the importance of accurate and complete recordkeeping by employers, as required by federal and state law. In the absence of these records, an employee seeking to certify a wage and hour class will be able to rely on representative statistical evidence to certify a class and prove liability.
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