
On
appeal to the Supreme Court, Tyson Foods’ chief argument was that the action
should not have been certified as a collection action because there were too
many individual differences between the type of gear worn by the class members
and the time spent donning and doffing the gear. Tyson Foods also argued that reliance
on the proffered representative evidence would result in awards of overtime
damages to class members who had never actually worked any overtime hours.
The
Supreme Court rejected Tyson Foods’ arguments, holding that the plaintiffs could
rely on representative statistical evidence from an expert to establish
liability and damages across the plaintiff class. The plaintiffs’ expert had videotaped
a sampling of employees engaged in donning and doffing activities to establish the
average amounts of time spent per day on donning and doffing. These averages
were then added to the plaintiffs’ time cards to establish which class members
worked over 40 hours per week and the amount of their overtime pay damages.
Of
particular interest in this case, third parties who filed “friend of court
briefs,” called “amici” had urged the Court to announce a broad
rule against the use of representative evidence in class actions. This type of
blanket prohibition could have significantly weakened plaintiffs’ ability to
maintain class actions. Rather, the Court relied on Federal Rules of Evidence
and explained that admissibility depends on the reliability of evidence in
proving or disproving elements of the relevant cause of action. One consideration
will be whether an individual plaintiff could have relied on the statistics to
prove his or her own claim if brought in an individual lawsuit. The Court also
noted that the admissibility of statistics will depend on the nature of the
cause of action at issue, the nature of the statistics being offered, and the
purpose for which the statistics are offered. While not explicitly stated by
the Court, its decision can be read to give approval to a case-by-case approach
to the admissibility of representative evidence in employment class actions.
In
issuing its ruling, the Supreme Court held that its decision was in accordance
with its well-known 2011 class action decision in Walmart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). You might
recall that, in Dukes, representative
evidence established by an expert was not admissible because there, unlike
here, the employees themselves could not have relied on testimony from others
about how they were discriminated against by their supervisor in their
particular store. Here, the Court concluded that plaintiffs worked in the same
facility, did similar work, and were paid under the same policy. Thus,
respondents could have introduced the expert’s study in a series of individual
suits.
Interestingly, the Supreme Court held that Tyson Foods had a legitimate concern that the representative evidence might result in uninjured employees, who had not actually worked overtime, improperly receiving overtime pay that was not due. The Court concluded that this issue was not yet properly before it given that the damages distribution allocation to the class had not yet been established. The Court, therefore, reserved ruling on this issue.
Interestingly, the Supreme Court held that Tyson Foods had a legitimate concern that the representative evidence might result in uninjured employees, who had not actually worked overtime, improperly receiving overtime pay that was not due. The Court concluded that this issue was not yet properly before it given that the damages distribution allocation to the class had not yet been established. The Court, therefore, reserved ruling on this issue.
Significantly, in this case, the
evidentiary-gap that the plaintiffs sought to fill by representative statistical
evidence was the making of the employer—improper record keeping. The FLSA
requires employers to “make, keep, and preserve . . . records of the persons
employed by him and of the wages, hours, and other conditions and practices of employment.” 29 U.S.C. § 211(c)
(emphasis supplied). Further, the Tyson
Foods Court emphasized, again, that the remedial nature of the FLSA and
“the great public policy which it embodies” militates against making the burden
of proving uncompensated work “‘an impossible hurdle.’”
In
light of Tyson Foods, employers should
review their FLSA policies and practices, including recordkeeping practices. Proactive
compliance can help decrease the risk of individual or collective wage and hour
claims.
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