In a decision that comes as a surprise to many observers, the U.S. Supreme Court held this week in Tyson Foods, Inc. v. Bouaphakeo et al. that plaintiffs can use representative evidence in a donning and doffing class or collective action, so long as those plaintiffs could have used the same evidence in an individual action. This decision is significant not only because it carries a $5.8 million price tag for Tyson Foods, but also because it allows plaintiffs to rely on a time study conducted on a sample of class members to calculate an average donning/doffing time, which is then extrapolated to each member of the class — even if the actual time spent on the activity in question varies dramatically among employees and even if some of the class members failed to prove damages at all based on that time study. This decision leaves employers and practitioners alike wondering where the line on the use of representative evidence will be drawn, if at all, and what can be done to block attempts to abrogate procedural due process in the pursuit of class adjudication.
The case was filed by employees working in the kill, cut and retrim departments of a Tyson Foods pork processing plant in Iowa. Employees are required to wear various types of protective gear depending upon the type of work they perform. The time it takes them to don and doff that protective gear likewise varies. Tyson Foods allegedly did not compensate all of its employees for all of this donning and doffing time, and did not record the time each employee spent donning and doffing the gear. The employees filed a Section 216(b) collective action and Rule 23 class action under the Fair Labor Standards Act and Iowa law, respectively.
Tyson Foods opposed class treatment in either form, arguing that the varying amounts of time employees spent on the activity at issue made such treatment inappropriate, because it showed that the employees were not sufficiently similarly situated. The district court disagreed, the case went to trial as a hybrid action. The class ultimately was awarded $5.8 million in damages (including liquidated damages). The U.S. Court of Appeals for the Eighth Circuit affirmed both the judgment and the award, and the U.S. Supreme Court granted certiorari.
Arguing before the Supreme Court, Tyson Foods emphasized that the time it took workers to don and doff the protective gear required for their particular duties spanned anywhere from only 30 seconds to a full 10 minutes. Therefore, the individual inquiry necessary to determine the amount of time each of the more than 3,300 class members spent on the activity in question predominated over any questions common to the class, rendering the matter ill-suited to class treatment.
The plaintiffs countered that individual inquiries were unnecessary, because class-wide damages could be inferred based upon the average donning and doffing time their expert calculated based on a study of 744 employees. The study concluded that employees averaged either 18 or 21.25 minutes of donning and doffing time each day, depending upon the department in which they worked. Those times were then added to the timesheets of the employees in the respective departments for purposes of calculating damages.
Tyson Foods argued that this approach was improper, and resulted in employees being included in the class who suffered no actual damages (because they did not work more than 40 hours per week if one were to count the time actually spent donning and doffing their protective gear). In other words, “[r]eliance on a representative sample … absolves each employee of the responsibility to prove personal injury, and thus deprives [Tyson Foods] of any ability to litigate its defenses to individual claims.” To prevent this from occurring, Tyson Foods asked the Court to lay down a broad rule prohibiting the use of representative evidence in class actions.
Tyson Foods also argued that, absent proof that all class members suffered injury, the plaintiffs must show “that there is some mechanism to identify the uninjured class members prior to judgment to ensure that uninjured members (1) do not contribute to the size of any damage award and (2) cannot recover such damages.” The Court declined to address this argument as premature, because the district court had not yet disbursed the award, and the record gave no indication of how that disbursement would be accomplished. (In a concurrence, Justice Roberts, joined by Justice Alito, expressed concern that the district court would be unable to cull out the plaintiffs who suffered no injury.)
In a 6-2 decision, the majority (with Justices Thomas and Alito dissenting) limited its analysis to whether class certification was proper under Rule 23 of the Federal Rules of Civil Procedure, noting that absent a dispute on the point between the parties, the Court assumed without deciding that the standard for certifying a collective action under the FLSA is no more stringent than the Rule 23 standard. It then declined the invitation to denounce the use of representative evidence in class actions, opting instead to take a more case-specific approach.
The key question when considering whether representative evidence is permissible in a class action, the Court reasoned, is whether “each class member could have relied on that sample to establish liability if he or she had brought an individual action.” A critical part of that analysis is the extent to which the employer met its recordkeeping obligations. Where an employer has not met these obligations, the Court continued, “the remedial nature of [the FLSA] and the great public policy which it embodies … militate against making the burden of proving uncompensated work an impossible hurdle for the employee.” In such a case, the employee must only present “sufficient evidence to show the amount and extent of [his/her uncompensated work] as a matter of just and reasonable inference.”
Here, the plaintiffs relied upon a representative sample because Tyson Foods did not keep records of the actual time they spent donning and doffing protective equipment, which was determined to be compensable time. Had the employees proceeded with individual lawsuits, the problem would have been the same in each case. Namely, the Court said, the plaintiff would be unable to point to evidence reflecting how much time he/she actually spent donning and doffing the equipment. Significantly, the Court concluded that the solution to that problem also would have been the same in each individual lawsuit; i.e., the time could be estimated based upon a study of a representative sample of employees.
The Court then rejected the company’s contention that allowing the plaintiffs to prove their case through representative evidence deprived Tyson Foods of its ability to litigate individual defenses, noting that “Tyson’s primary defense was to show that [the expert’s] study was unrepresentative or inaccurate.” However, Tyson raised no challenge to the study itself.
The Court also rejected the argument that Wal-Mart Stores, Inc. v. Dukes precludes use of representative evidence in a class action. In Wal-Mart, which was a discrimination case, the employees were found not to be subject to a common policy of discrimination and the Court therefore determined that none of them could have succeeded in an individual lawsuit by relying upon evidence of how other employees were treated. It follows that to allow them to use that same evidence in a class action “would have violated the Rules Enabling Act by giving plaintiffs and defendants different rights in a class proceeding than they could have asserted in an individual action,” the Court reasoned.
In the Tyson Foods case, by contrast, the employees worked in the same plant, performed similar work and were paid under the same policy. Therefore, the study at issue “could have been sufficient to sustain a jury finding as to the hours worked if it were introduced in each employee’s individual action.”
The Lessons for Employers
While the Tyson Foods opinion does not come as good news to employers, it is not as bad as it could have been. The Court did not, after all, announce a broad rule allowing the use of representative evidence in class and collective actions. In light of that silver lining, there are some lessons contained in the opinion that employers would do well to bear in mind:
Consider eliminating the possibility of representative evidence by keeping accurate time records. The opinion reinforces the idea that the specter of representative evidence depends in large part on the employer’s failure to maintain the requisite time records of compensable work. Therefore, an employer can increase the likelihood that representative evidence will be deemed inadmissible by keeping accurate time records for all employees, including time spent on activities the employer deems to be noncompensable.
Remember the Rules Enabling Act. The Court was careful to note that the permissibility of representative evidence in a class or collective action will depend upon the facts of the case and the purpose for which the evidence is being presented. The Tyson Foods opinion notes that if the representative evidence at issue would not be permissible in each plaintiff’s individual action if the plaintiff’s had proceeded on their own, then allowing its use in a collective or class action would violate the Rules Enabling Act. Therefore, if faced with an effort by plaintiffs’ counsel to use representative evidence in a collective or class action, fight back by arguing that its use in your case would give the plaintiffs rights in a class action that they would not have in an individual action, thereby abridging an employer’s substantive right to defend against the claims.
Challenge the methodology underlying the evidence. The majority opinion makes clear that the permissibility of representative evidence “turns not on the form a proceeding takes … but on the degree to which the evidence is reliable in proving or disproving the elements of the relevant cause of action.” Therefore, rather than focusing solely on the appropriateness (or lack thereof) of using representative evidence in the collective or class action context, show the court that the evidence itself is unreliable. This can be accomplished by showing that the study upon which the evidence is based was unrepresentative or inaccurate.
Beware bifurcation backfires. There was no dispute in the Tyson Foods case that many of the plaintiffs included in the class did not suffer any actual damages. It remains to be seen whether and how the district court is able to address this problem when disbursing the award to class members. But the majority opinion made a point of noting that this problem could have been avoided altogether. The plaintiffs had proposed bifurcating the liability and damages phases of the trial, recognizing that “it may be difficult to remove the uninjured individuals from the class after an award is rendered,” and Tyson successfully opposed that request. Given that procedural history, the Court noted that the district court should determine at the outset of disbursal proceedings whether “any error should be deemed invited.”
Given the Court’s emphasis that the permissibility of representative evidence in class and collective actions is case-specific, the contours of this approach will no doubt be drawn through litigation for years to come. Savvy employers will keep this issue on their radar screen and follow it as it develops.