SCOTUS Opens the Door to Representative Evidence in Donning and Doffing Cases

by Cozen O'Connor
Contact

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 Facts

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.

The Argument

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.)

The Decision

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Cozen O'Connor | Attorney Advertising

Written by:

Cozen O'Connor
Contact
more
less

Cozen O'Connor on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.