United States: Pork Processing Plant Employees Can Keep The Bacon: Supreme Court Affirms Jury Award And Permits Proof Of Wage And Hour Class Claims By Representative Evidence

While the Supreme Court in Tyson Foods, Inc. v. Bouaphakeo dashed employers' hopes that the Court would broadly preclude statistical evidence and severely limit wage and hour class actions in a fashion similar to its restriction of discrimination class actions in Wal-mart v. Dukes, the Court was also clear that this type of evidence will not be appropriate or probative in all wage and hour claims. In ruling for the class action claimants, the Court affirmed a $2.9 million jury award for overtime claims related to donning and doffing at an Iowa pork processing plant. In so ruling, the Supreme Court refused to adopt the position advanced by Tyson Foods and several of its amici that class actions cannot be resolved by reliance upon representative evidence or statistical samples. It also refused to embrace Tyson Food's reading of Wal-mart v. Dukes as standing for the proposition that representative sample is an impermissible means of establishing class-wide liability. But the Court also made clear whether statistical evidence could be used for liability depends on the claims asserted and the particular evidence. While the decision is not unsurprising after oral arguments, it seems likely that employers will see an uptick in plaintiffs aggressively relying on "representative" statistical evidence in wage and hour collective and class cases. There are, however, several "lessons learned" based upon the majority's decision.

The underlying issue in the case was whether Tyson Foods improperly denied overtime compensation to its employees at Tyson's Storm Lake processing facility for the time that they spent putting on and taking off the required protective gear. The District Court conditionally certified the class and collective action even though it acknowledged that each individual might have spent a different amount of time dressing prior to the shift, which, in turn, would mean that not all of the employees worked more than 40 hours in a week. The parties and the courts are in agreement that Tyson Foods only faced potential liability for uncompensated hours beyond 40 hours in a week. At trial, the employees offered evidence of two experts in support of their claims; neither of whom were subject to a Daubert challenge by Tyson. First, they offered evidence from an industrial relations expert who conducted videotaped observations and estimated the number of minutes per day that employees spent dressing in their required protective gear. Second, they offered another expert who took that estimated average donning and doffing time and calculated that the employees were due $6.7 million in uncompensated time. Based on this evidence, the employees were able to establish liability under state and federal wage and hour laws. However, the jury awarded a reduced damages verdict of $2.9 million. The Eighth Circuit affirmed the decision and Tyson Foods appealed the verdict to the Supreme Court.

Writing for the majority, Justice Kennedy determined that the representative testimony sufficed to meet the class certification requirements under Federal Rule of Civil Procedure 23 and the requirements of the Fair Labor Standards Act and the Iowa state wage and hour law. According to the Court, the touchstone of the certification inquiry was whether the representative testimony met the predominance test which asks whether the common issues in the case are "more prevalent or important than the non-common. . .individual issues." Answering in the affirmative, the majority opinion determined that the evidence was sufficiently representative because, had the plaintiffs filed individual claims, they would have been able to meet their liability burden to prove that Tyson Foods failed to compensate them for donning and doffing time by relying on the expert's study in almost every individual case. Relying in part on Anderson v. Mt. Clemens, the Court found that representative testimony can be most helpful where the employer failed to keep records and, as such, representative evidence may be the only way employees can meet their prima facie burden. Turning to the Tyson Foods and the amici's claims that the Court apply the decision in Wal-Mart v. Dukes and find that the employees' actions were too dissimilar to merge, the Court distinguished the Tyson Food's facts. According to the majority, unlike the Tyson Foods employees who could point to a common practice leading to undercompensating them for donning and doffing, the employees in Wal-mart v. Dukes could not point to a common policy leading to the conclusion that company-wide discrimination existed.

The second question presented before the court was whether the jury verdict could survive when it was not clear which employees worked more than 40 hours and which were uninjured by Tyson Foods' compensation practice. The majority deemed the issue premature and instructed the District Court to address this issue on remand. In the concurring opinion, Justice Roberts agreed that the issue was not ripe for consideration but added his concern that the District Court's would find it difficult to interpret the jury's reduction of the estimate from $6.7 million to $2.9 million in such a way that would separate the uninjured employees from those that are entitled to share in the award. According to the Chief Justice, Article III of the Constitution does not give the courts the power to order relief to any uninjured plaintiff and failing to separate out the injured from the uninjured employees within the class would be fatal to the jury award.

Several important themes come out of the majority decision.

  • Statistical evidence is not always going to be appropriate. The Supreme Court refused to adopt Tyson Food's argument that representative evidence in class actions is always improper. Faced with Tyson Foods' failure to maintain the required records and unrebutted representative evidence from the employees' expert, the Court approved the use of statistical evidence. The Court cautioned that the evidence must be reliable in proving or disproving the elements of the relevant cause of action, and left the door open as to whether less reliable evidence would suffice to meet the classwide representative requirements. Accordingly, employers are not foreclosed from arguing that the evidence in the particular case before them does meet the requirements and should consider making use of Daubert challenges and rebuttal experts.
  • Wal-mart v. Dukes remains intact. The Court's decision in Tyson Foods reiterates that the statistical evidence offered in Wal-mart was not probative as to whether any individual was discriminated against by their particular store manager because the employees were not similarly situated. By contrast, in Tyson Foods, the Court concluded the experiences of other employees would be probative of an individual's claim because they each worked in the same facility, did similar work and were paid under the same policy that deemed certain donning and doffing to be noncompensable.
  • The Supreme Court's 1946 decision in Anderson v. Mt. Clemens remains intact. Despite claims of its demise, stare decisis exists as the Court relied heavily on its seminal decision in Anderson v. Mt. Clemens. In Clemens, the Supreme Court allowed testimony from 7 employees and their union to serve as representative testimony for 400 similarly situated employees where the employer did not keep records of the work time. Holding that the failure to keep records should not penalize the employees, the Court determined that the remedial nature of the FLSA required a presumption in the employees' favor. Drawing on that precedent, the Tyson Foods Court held that it was reasonable to use a representative sample to fill the evidence gap crated by Tyson Food's failure to keep adequate records of the time the employees spent donning and doffing. The Mt. Clemens presumption remains applicable in FLSA actions as, attempts to extend Mt. Clemens beyond the wage and hour context have been largely unsuccessful.

Additionally, the Supreme Court specifically left open the question of whether the District Court could devise a reasonable method for determining how to distribute the $2.9 million award to ensure that only those individuals who actually would have worked over 40 hours per week if they were compensated for donning and doffing would partake in the recovery. As the concurring opinion aptly points out, this is no small task.

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
 
In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.