United States: Where's The (Pork)? Justices Sidestep Meatiest Issues At Oral Argument In Tyson Foods

Companies burdened by an avalanche of wage and hour class and collective actions have been hoping that Tyson Foods, Inc. v. Bouaphakeo might be the game-changing decision they have been waiting for.  If the oral argument before the Supreme Court this morning is an accurate indication (and it may not be), they may have to wait a little longer.

In thousands of cases over the last ten years, federal courts have struggled to decide when an employee can convert an ordinary wage dispute into a class action under state law or a collective action under the Fair Labor Standards Act.  Despite the frequency with which these issues arise, and their importance, Tyson Foods is the Supreme Court's first opportunity to weigh in on the subject.

As we have described in our earlier posts, [ here, here, and here], several named plaintiffs claimed that Tyson Foods failed to pay a class of more than 3,000 employees in a pork processing plant for time spent "donning" and "doffing" various kinds of sanitary and protective gear and for other pre- and post-shift activities.  The trial judge allowed the case to proceed as a class action under Iowa law and allowed several hundred employees to opt in to an FLSA collective action.  At trial, the plaintiffs presented an expert witness who videotaped employees at the beginning and end of their shifts and calculated the average time they spent on various tasks.

The jury reached a $5.9 million lump-sum verdict in favor of the certified class.  Significantly, however, the jury's verdict was much less than the amount plaintiffs' experts had calculated by averaging the donning, doffing, and walking time spent by about several hundred of the class members.

In its Supreme Court briefing, Tyson Foods attacked (1) the determination of liability and damages by averaging the experiences of dissimilar class members, and (2) the inclusion in the class of individuals who never suffered any lost pay.  Underlying these issues are important questions regarding whether plaintiffs in a class action may satisfy the predominance requirement of Rule 23(b)(3) merely by alleging an unlawful compensation practice or policy, even if the challenged policy affects different proposed class members differently–and some not at all; and whether the "similarly situated" standard of FLSA §216(b) incorporates the requirements of Rule 23.

At oral argument, the Justices, although animated in their questioning of both sides (as well as of the government's attorney who argued as a friend of the court for the Department of Labor), mostly bypassed these broad questions, focusing instead on more FLSA- and case-specific issues.

Much of the argument focused on whether the case should be decided, not on the application of Rule 23(b)(3) or the "similarly situated" standard for FLSA collective actions, but on the application of a 1947 Supreme Court decision, Andersen v. Mt. Clemens Pottery Co.  From nearly the beginning of the argument, first Justice Kagan and later Justices Kennedy, Breyer, and Sotomayor, peppered Tyson Foods' attorney with questions about that case and whether it, rather than Rule 23, should drive the Court's decision.  Relying on the part of Mt. Clemens Pottery in which the Court decided that evidence of the average time spent on a task could be used to determine FLSA damages if the employer did not keep records of actual time worked, these Justices questioned whether averaging might be proper because Tyson Foods had not kept records of the exact time spent by each class member putting on and taking off each specific article of gear.  In response, Tyson Foods' attorney argued that Mt. Clemens Pottery only applied to the damages phase and should not be extended to a determination of liability.  Responding to questions from Justices Alito and Kennedy about whether it would be fair to penalize employers for not having records of time spent on activities that they believed in good faith were non-compensable, the Assistant Solicitor General arguing for the government in support of the plaintiffs, contended that Mt. Clemens required that result.

Several of the Justices seemed interested in whether it would be possible for the district court judge on remand to sort out which employees had and had not been injured and how the damages the jury awarded should be allocated.  Justices Kagan and Kennedy seemed to think that task would be easy.  Justices Roberts, Sotomayor and Alito pointed out, however, that the jury must have rejected some aspects of the plaintiffs' evidence because of the large discrepancy between the verdict and the experts' calculation of damages.  Would it be possible, these Justices wondered, for the district court judge to determine damages for specific class members when she could not know the reason for the jury's damages reduction–whether the jury had concluded that the average times for donning and doffing specific items were inflated or whether some averages were accurate and others way off the mark?  And, these Justices worried that, without knowing which tasks were undercompensated, the judge would not know which class members the jury decided had been denied overtime pay.

The Justices also discussed whether Tyson Foods has standing to object to how the district court allocates the judgment among class members.  Even if some class members are overcompensated and others undercompensated, the employees' counsel argued, the mistakes will not increase Tyson Foods' liability.  Tyson Foods responded, however, that the legal peace that is created when an employee is paid all the wages he or she is owed gives the company standing to object if the employee's share of the judgment is reduced because of payments to employees who were not truly injured.

Finally, several of the Justices devoted significant time to a surprisingly detailed discussion of the extent of variation among class members as to the clothing and protective gear they used and how long it took them to put on or take off specific items.  So specific were the Justices' questions that, at one point, laughter broke out in the courtroom when Justice Ginsberg rehearsed the exact sanitary gear worn by class members ("hard hats, ear plugs or ear muffs, and boots") and then chided class counsel, along with Chief Justice Roberts and Justice Scalia, for omitting "boots" from his list.

Forecasting a Supreme Court decision based on oral argument is a hazardous proposition.  Whether it is a game-changer or not, we will report on this case again when the Supreme Court issues its decision–most likely in Spring 2016.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions