The Supreme Court ruled today that Plaintiffs’ use of average donning and doffing times was proper and sufficient to affirm a $5.8 million judgment against Tyson Foods. Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146 (Mar. 22, 2016). Plaintiffs (employees in a pork processing plant in Iowa) relied at trial on an industrial relations expert’s calculations of the average time it took for employees to don and doff required protective gear. Tyson argued basing individual damages on the expert’s average failed to consider differences in the composition of the gear that may have altered the time each spent donning and doffing.

The Court disagreed. The employer’s failure to keep adequate time records created an “evidentiary gap” and the Plaintiffs had to fill that gap through the expert’s study. Tyson could have argued the representative evidence was statistically inadequate or based on implausible assumptions (under Daubert) but it did not challenge the methodology. The Court distinguished Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), where the Court ruled the individual class members could not rely on the experiences of other workers in different stores to establish discrimination against the class members generally. Here, Plaintiffs worked in the same Tyson facility, did similar work, and were paid under the same policy. Thus, the Court found, each class member could have introduced the expert’s study in his/her individual suit. For those reasons, the Court held that the representative evidence was a permissible means of showing individual hours worked.

Plaintiffs’ attorneys will now undoubtedly argue that the Court is signaling some backtracking from Dukes. The workers are similarly situated, for class or collective action purposes, in part because they are subject to the same employer policy. But crucial here is also the fact that there were no relevant individualized records for the Court’s use. “Trial by Formula” might not be dead, but the formula must be proper.