On March 22, 2016, the United States Supreme Court affirmed the certification of a class of Tyson Foods employees under Rule 23(b)(3) and a collective action under the Fair Labor Standards Act (FLSA). The Court held that representative evidence could be allowed to fill an evidentiary gap created by an employer’s failure to keep adequate records when that representative evidence could have been used by a class member to prove liability in an individual action. Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. ___ (2016).

The U.S. District Court for the Northern District of Iowa certified a Rule 23 class to pursue Iowa state-law wage payment claims and a collective action to pursue FLSA claims. Both sets of claims were brought on behalf of employees at a single Tyson plant alleging they did not receive statutorily mandated overtime pay for time spent donning and doffing protective equipment. Tyson challenged the certification of the class and collective action because the plaintiffs’ primary method of proving injury assumed each employee spent the same amount of time donning and doffing protective gear. The district court rejected the challenge, and the Eighth Circuit affirmed.

The Supreme Court declined to “announce a broad rule against the use in class actions of what the parties call representative evidence. . . . the Court would reach too far were it to establish general rules governing the use of statistical evidence, or so-called representative evidence, in all class-action cases.” Slip Op. at 10. Instead, “[w]hether and when statistical evidence can be used to establish classwide liability will depend on the purpose for which the evidence is being introduced and on ‘the elements of the underlying cause of action[.]’” Slip op. at 10 (quoting Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011)).

“[I]n the circumstances of this case,” the use of the expert’s averages was permissible under Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), which “held that when employers violate their statutory duty to keep proper records, and employees thereby have no way to establish the time spent doing uncompensated work,” the burden shifts to the employer to come forward with evidence of actual time worked. Slip op. at 11-12. Because Tyson had no such evidence for the plant at issue, the Court noted, an employee bringing an individual action “likely would have had to introduce [the expert’s] study to prove the hours he or she worked.” Slip op. at 12. If the evidence could be used to prove liability in an individual action, it cannot be deemed improper just because the same claim is brought on behalf of a class.

The Court added that the decision was entirely consistent with Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), because in Wal-Mart there was no “significant proof of a common policy of discrimination,” and thus no commonality – a defect which could not be cured by representative evidence. And “[w]hile the experiences of the employees in Wal-Mart bore little relationship to one another, in this case each employee worked in the same facility, did similar work, and was paid under the same policy.” Slip op. at 14.

The opinion refers several times to the “circumstances of this case,” to the inferences allowed under Mt. Clemens, to Tyson’s failure to keep records as required by the FLSA, and to the public policy behind federal and state wage laws, apparently limiting the holding to cases in which inferences from representative evidence would be allowed under the governing substantive law. But elsewhere the opinion refers simply to the fact that “there were no alternative means for the employees to establish their hours worked,” Slip op. at 12, and observes that “[i]n many cases, a representative sample is ‘the only practicable means to collect and present relevant data’ establishing a defendant’s liability.” Slip op. at 10 (quoting Manual of Complex Litigation § 11.493, p. 102 (4th ed. 2004)). And Justice Roberts, concurring in the judgment, noted that he did not view the decision as FLSA-specific: “Rather, I take the Court to conclude that Dr. Mericle’s study constituted sufficient proof from which the jury could find ‘the amount and extent of [each individual respondent’s] work as a matter of just and reasonable inference’ – the same standard of proof that would apply in any case.” (Roberts, C. J., concurring, slip op. at 2.)

In a dissent joined by Justice Alito, Justice Thomas wrote that the district court should have analyzed the plaintiffs’ proposed methodology – debuted as trial testimony – before granting the plaintiffs’ motion for class certification, or should at least have revisited the issue when the evidence surfaced at trial. (Thomas, J., dissenting, slip op. at 6.) Justice Thomas also rejected the majority’s suggestion that predominance can exist even when “important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members,” as inconsistent with Comcast Corp. v. Behrend, 569 U.S. ___ (2013). (Thomas, J., dissenting, slip op. at 7-8.) He also questioned the majority’s reliance on Mt. Clemens in light of more recent amendments to the FLSA, and noted that under the Court’s decision today, employers “must either track any time that might be the subject of an innovative lawsuit, or they must defend class actions against representative evidence that unfairly homogenizes an individual issue.” (Thomas, J., dissenting, slip op. at 13.)

The Court’s grant of certiorari in the case included a second question regarding the availability of class certification where some members of the class suffered no injury. The Court deemed consideration of that question “premature” because the district court has not yet determined how the jury’s aggregate damages award will be distributed. The majority opinion suggests in dicta that any error in determining entitlement to damages might have been invited by Tyson, which insisted on trying liability and damages together despite the plaintiffs’ proposal for bifurcation. Justice Roberts noted that “Tyson’s insistence on a lump-sum jury award cannot overcome the limitations placed on the federal courts by the Constitution,” and Justice Thomas, joined by Justice Alito, “see[s] no reason to opine on this issue.” In any event, the issue of whether averages and other statistical evidence may be used to award damages to class members, including those who have suffered no injury, remains for another day.