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U.S. Supreme Court

Supreme Court allows statistical evidence to establish unpaid work time in Tyson Foods class action

Image courtesy of Tyson Foods.

The U.S. Supreme Court has upheld class certification in a lawsuit that used statistical evidence to support overtime pay for workers who weren’t compensated for time spent donning and doffing protective gear at a Tyson Foods plant in Iowa.

In a 6-2 opinion, the court upheld certification of a class based on the average time it took workers to don and doff protective gear. Statistics may be used to infer the hours an employee worked in a class action, as long as those statistics could be used in individual suits by the employees, the court said.

The majority opinion (PDF) by Justice Anthony M. Kennedy was joined by five justices. Chief Justice John G. Roberts Jr., who joined the majority opinion, wrote a concurrence that was joined by Justice Samuel A. Alito Jr. Alito also joined the dissent by Justice Clarence Thomas.

Jurors had ruled for the Tyson workers, finding they were due a lump sum of $2.9 million in unpaid wages. That amount fell short of statistical calculations supporting a $6.7 million award. Tyson Foods sought to set aside the judgment. The company had argued the time it took to change into and out of protective gear varied based on the employee, and the individual claims were not sufficiently similar to be resolved in a class action.

Tyson did not keep records of donning and doffing time at the plant. To prove that changing in and out of the protective gear caused the employees to work overtime, the plaintiffs relied on a study that assessed how long it took various workers to don and doff gear, based on 744 observations, and then averaged the time.

Kennedy noted that Tyson Foods and amici had sought a broad rule against the use of statistical evidence—also called representative evidence—in class actions. Kennedy said a broad rule would “reach too far.” Whether and when statistical evidence can be used to establish classwide liability, Kennedy said, will depend on the purpose for which the evidence was introduced and on the underlying cause of action.

In many cases, Kennedy said, a representative sample is the only practical way to provide relevant data of liability. If individual class members could have relied on the statistical sample to establish liability, they should be able to do so in a class action, Kennedy said.

In this case, the workers “sought to introduce a representative sample to fill an evidentiary gap created by the employer’s failure to keep adequate record,” Kennedy wrote. Workers likely would have relied on the statistical evidence in individual lawsuits.

Kennedy pointed out that Tyson Foods still could have defended the suit by showing the statistical study was unrepresentative or inaccurate. But it did not challenge the methodology.

Kennedy did not reach a second issue—whether class members who didn’t work more than 40 hours a week can recover based on the statistical evidence. That question has not yet been fairly presented, Kennedy said, because the damages award has not yet been distributed.

Roberts’ concurrence expressed concern that, in apportioning the damages award, the district court may not be able to determine which employees worked less than 40 hours a week and thus weren’t eligible for overtime pay.

Thomas’ dissent said the district court had failed to “undertake a rigorous analysis” required for the use of representative evidence.

The case is Tyson Foods Inc v. Bouaphakeo.

Related article:

ABAJournal.com: “Supreme Court to consider class certification when each plaintiff is deemed average”