Supreme Court Rules Statistical Evidence is Appropriate Method to Certify Class
In Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036 (2016), the United States Supreme Court recently upheld a class certification based on statistical evidence to support overtime pay for the time spent for workers to put on and remove protective clothing during working hours.
Peg Bouaphakeo was a former employee of Tyson Foods, Inc. at the meat-processing facility in Storm Lake, Iowa. Bouaphakeo and other plaintiffs' job duties required them to wear protective clothing. Tyson did not record the time each employee spent on those activities. Approximately 3,344 current and former employees filed suit against Tyson and argued that the company violated the Fair Labor Standards Act of 1938 (FLSA) and the Iowa Wage Payment Collection Law by not compensating them for the time spent putting on and removing protective clothing at the beginning and end of the work day and lunch break. The district court certified the class of employees noting that to recover for a violation of the Fair Labor Standards Act's overtime provisions, the employees needed to establish that they each worked more than 40 hours per week, inclusive of the time spent taking on and off the protective clothing.
To prove their case, the plaintiffs retained an industrial relations expert who analyzed the time consuming activities involved with putting on and taking off the protective clothing, which he estimated to range from 18 to 21.25 minutes a day. The jury returned a verdict in favor of the plaintiffs, awarding them millions in compensatory damages for unpaid wages.
Tyson appealed and argued that the district court erred in certifying the plaintiff class because factual differences among the plaintiffs made class certification improper. Additionally, the class certification was improper because evidence presented at trial showed that some members of the class were not injured by the company's actions and therefore had no right to damages. The Eighth Circuit affirmed the district court's certification of the plaintiff class.
The Supreme Court granted certiorari to decide two questions with potentially broad application to Rule 23(b)(3) class actions. First, the court considered whether differences among individual class members may be ignored for class certification purposes when plaintiffs use statistical techniques that presume that all class members are identical. Second, the court was considered whether a class may be certified if it contains hundreds of members who were not injured and have no legal right to damages.
Justice Anthony Kennedy authored the 6-2 opinion, which first considered the question of whether uninjured class members could recover. The Court held that the class members were joined under one common question, which satisfies the requirements for a class action suit despite differences among the members. The Court noted that some class members who had not been injured would have no right to damages. The case was remanded so the lower court considered the proper disbursement of the damage award.
The Court also looked at whether the use of statistical evidence was appropriate. Justice Kennedy stated that whether statistical evidence may be used to establish classwide liability "will depend on the purposes for which the evidence is being introduced." The Court paid special attention to the holding in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946). In Mt. Clemens, the Supreme Court held that when employers fail to keep time records and leave employees no opportunity to establish the time they have spent doing uncompensated work, the employees may proceed under the Act if they "produce sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference." The Supreme Court in Tyson concluded that the Mt. Clemens precedent permitted the use of plaintiff's statistical sample to establish classwide liability under the FLSA and state law because, like Mt. Clemens, the plaintiffs in this case had no other way to establish the number of hours for uncompensated work. The Court also observed that Tyson failed to disprove that the plaintiffs' expert's study was unrepresentative or inaccurate. Justice Clarence Thomas authored a dissent, joined by Justice Alito.
This case is noteworthy because it confirms that representative proof, such as statistical evidence, is a reasonable methodology to certify a class. The ruling in this case is also consistent with IBP, Inc. v. Alvarez, 546 U.S. 21 (2005), where the Court held that time spent walking between the locker room and the production area after putting on protective gear and taking it off was compensable work under the FLSA. The rulings in the Tyson and IBP cases reflect the judicial desire to enforce the provisions of the FLSA, which are designed to eliminate those situations where employees are not compensated for work activities.