Representative Evidence May Be Used to Prove Class Action Wage Claims

In a case of national importance, the U.S. Supreme Court ruled that workers could use representative or statistical evidence to prove their claims for overtime under the Fair Labor Standards Act (“FLSA”). Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016) (“Tyson Foods”). The case involved workers at a meat-processing plant in Iowa. They claimed that Tyson Foods did not pay them for the time they spent putting on and taking off (“donning and doffing”) protective equipment for their dangerous work, or for the time they spent walking to and from their workstations in the plant. At trial the workers used a report from an industrial relations expert to show the amount of time they spent donning and doffing. The expert had done videotaped observations to find out how long these activities usually took and then averaged the times. The average times were added to each employee’s timesheets to determine which employees worked more than 40 hours per week if their donning and doffing time was taken into account. The trial court accepted this evidence and the jury awarded the workers $2.9 million in unpaid wages. 

In the Supreme Court, Tyson Foods argued that the varying amounts of time it took workers to don and doff different protective gear made using the expert’s sample improper. Tyson Foods claimed that using a representative sample to prove claims for a class of workers would lead to recovery for workers who had not in fact worked more than 40 hours per week and would deprive it of its Due Process right to litigate defenses to individual claims. The Supreme Court disagreed.

The Court held that representative or statistical evidence could be used to prove liability in a class action, as long as it is reliable in proving the elements of the cause of action.  The Court compared the case to Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), in which seven employees, seeking to represent over 300 others, brought a collective action against their employer for failing to pay them for time spent walking to and from their workstations. In Mt. Clemens the Court held that because the employer had failed to maintain proper records of all work time, the employees could prove their wage claims by “produc[ing] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Id. at 687. Then the burden would shift to the employer to “come forward with evidence of the precise amount of work performed or with evidence to negative to the reasonableness of the inference to be drawn from the employee’s evidence.” Id. at 687-88. With respect to the Tyson workers’ claims, the Court found that since they would most likely need to introduce the expert report in order to prove their individual claims, the expert report was also admissible to prove class claims. See Tyson Foods, 136 S. Ct. at 1047 (“Rather than absolving the employees from proving individual injury, the representative evidence here was a permissible means of making that very showing.”).

In introducing representative evidence in a class action, workers will still need to show that the evidence is reliable under the standard in Daubert v. Merrell Dow Pharmaceuticals, Inc.,  509 U.S. 579 (1993). However, the Supreme Court’s ruling in Tyson Foods is a step forward for workers bringing wage claims against their employers in class and collective actions. Employers will not be able to defeat such claims only because the proof is based on representative evidence.

In a side note of interest to class action practitioners, Tyson Foods also reiterated that the presence of individualized damages issues in a class action does not defeat class certification. Rather:

The predominance inquiry asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues. When one or more of the central  issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.

Tyson Foods, 136 S. Ct. at 1045 (internal citations and quotation marks omitted).