The following materials were prepared by Edelstein Payne & Lucas firm partner Vanessa Lucas and will be presented in her upcoming Federal Law update CLE training seminar to educate other lawyers at the North Carolina Advocates for Justice annual convention:
Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. ________(2016) No. 14-1146 Class Certification
Decision: March 22, 2016 by Kennedy with Roberts(!), Ginsburg, Breyer, Sotomayor and Kagan joining. Roberts filed a concurring opinion, in which Alito joined as to Part II. Thomas filed a dissenting opinion, in which Alito joined.
Background: On writ of certiorari from the Eight Circuit. Plaintiffs are employees at a pork processing plant in Iowa that work in the plant's kill, cut and retrim departments. The work is “grueling and dangerous” and requires employees to wear protective gear that varies on tasks performed by the employee. In 1998, following a federal court injunction and Dept. of Labor suit to enforce the injunction, Tyson started paying employees for “gang-time” (time they spend at their workstations) plus 4 minutes per day that Tyson estimated it takes to don and doff gear. In 2007, Tyson stopped uniformly paying the 4 minutes and compensated some employees for between four and eight minutes but paid others only their gang-time. Plaintiffs, Tyson employees who only received gang-time, sued under the Fair Labor Standards Act (FLSA) and State Law arguing that they did not receive overtime for the time they spend donning and doffing protective agreement. Plaintiffs used representative evidence, including an expert study with statistical evidence, to show donning and doffing time, as Tyson did not keep records. A jury awarded $2.9 million in compensatory damages to Plaintiffs after finding that before work donning and doffing time is compensable, but not meal time donning and doffing. Tyson moved to set aside the jury verdict, which was denied. The Eight Circuit affirmed the district court judgment and award. Tyson argues that the it was improper to permit the employees to pursue as a class action because: (1) the method of proving injury assumed that each employee spent the same time donning and doffing though differences in equipment meant the employees took a different amount of time, and (2) damages awarded to the class may be distributed to some employees who did not work any uncompensated overtime.
Holding: The lower court did not err in certifying and maintaining the class. Tyson failed to keep adequate time records, so employees need a representative sample to produce evidence of time spent donning and doffing. A representative sample is the only practicable way to collect and present data establishing defendant liability in many cases. Where representative evidence is relevant in proving a plaintiff's individual claim it cannot be deemed improper because the claim is brought on behalf of a class. If the sample could have sustained a reasonable jury finding as to hours worked for an individual action it is permissible to establish hours worked for the class. Once the evidence is found admissible it is a matter for the jury to decide if it is probative as to the question of the time spent by the employees. Tyson's reliance on Wal-Mart Stores Inc. v. Dukes 564 U.S. 338 (2011) is misplaced as it “does not stand for a broad proposition that a representative sample is an impermissible means of establishing class-wide liability.” The court distinguished Wal-Mart on the grounds that the class certification in the case was reversed because the employees could not provide evidence of a common policy of discrimination (that case was about discrimination in promotion and tried to use representative sample evidence to establish that company-wide managerial discretion was abused a level justifying class action) whereas in this case all of the members of the class worked in the same facility, did similar work, and was paid under the same policy. In further contrast, the court noted that such representative evidence would have been sufficient to sustain a jury finding as to hours worked if it were introduced in each employee's individual action.
Tyson reframed its second argument regarding compensation of un-harmed employees after filing for cert. The argument to the Court was that absent proof of class-wide injury, class members (as a condition precedent to class certification) should have the burden of demonstrating there is a mechanism to ensure that uninjured employees do not contribute to a damage award and cannot recover damages. The Court found this was premature as awards had not yet been made and that Tyson has made this problem by arguing against bifurcation and “now seek to profit from the difficulty it caused.”
Edelstein Payne & Lucas has experience enforcing Fair Labor Standards Act overtime requirements, and is available for consultation and representation. If you have a situation involving unpaid overtime, fill out the form on our employment law page and we will contact you, or you can call us at 919-828-1456.