United States: Post-Tyson Foods: No, The Sky Is Not Falling

This past March, we blogged about the U.S. Supreme Court's decision in Bouaphakeo v. Tyson Foods, Inc., 136 S. Ct. 1036 (2016), a case in which the plaintiffs alleged that Tyson Foods improperly denied compensation for time spent putting on and taking off required protective gear at a pork processing facility.  At trial, the plaintiffs presented experts who, based on sample data, determined the average number of minutes employees likely spent donning and doffing and the aggregate damages that would be owed to the class as a result.

The Supreme Court held that the plaintiffs were permitted to rely on statistical evidence to establish their claims on a class-wide basis under the circumstances of that case.  The Court emphasized that whether plaintiffs can rely on statistical analysis to establish class liability would depend on the facts of each individual case, with close scrutiny directed at the purpose for which the representative evidence is being introduced and the elements of the underlying claims.  Takeaways from various opinions issued since then have suggested that Tyson Food's application is, in fact, limited.  Here are four notable developments in the lower courts:

The use of representative evidence has largely been confined to class actions arising where an employer has a policy denying wages for certain kinds of work, or neglects an obligation to document compensable work.  The court in Ridgeway v. Wal-Mart Stores, Inc., No. 08-CV-05221-SI, 2016 WL 4529430 (N.D. Cal. Aug. 30, 2016), for example, allowed reliance on representative evidence where the employer's default policy failed to pay piece-rate drivers any wages for enumerated tasks.  Similarly, the plaintiffs in Perez v. Isabella Geriatric Ctr., Inc., No. 13-CV-7453 (RA), 2016 WL 5719802 (S.D.N.Y. Sept. 30, 2016), were permitted to use sample data because the employer had a practice of paying employees based on their scheduled time rather than their actual time worked.  In both cases, the courts treated representative evidence as a practical way of filling evidentiary gaps of the employers' creation.

Courts have prohibited the use of representative evidence where the underlying theory of violation varies among class members.  This is consistent with the limiting principle articulated in Tyson Foods that representative sampling is permissible for a class only if the same representative evidence could be reliably used to prove an individual class member's claim.  In Senne v. Kansas City Royals Baseball Corp., 315 F.R.D. 523 (N.D. Cal. 2016), for example, minor league baseball players across the country asserted various class claims under the FLSA for unpaid minimum and overtime wages.  The plaintiffs' bid for class certification was unsuccessful due, in part, to their reliance on surveys regarding the amounts of time class members spent performing work-related activities.  The extent of liability depended entirely on the class members' individualized activities, but the court reasoned that material variations among the class members' engagement in such work meant that sampling data could not reliably be applied to the class.  In re: Autozone, Inc., No. 3:10-MD-02159-CRB, 2016 WL 4208200 (N.D. Cal. Aug. 10, 2016) reached a similarly conclusion, finding that representative evidence cannot be used to prove rest break claims on a class-wide basis in the absence of a uniform policy, because an individual action would not be able to point to other employees' varied experiences of when and how they took rest breaks to establish their individual claim for missed rest breaks.

The use of representative evidence to establish class-wide liability does not necessarily dispose a plaintiff's obligation to avoid compensating uninjured class members.  In Tyson Foods, the Supreme Court declined to conclusively decide whether a class action may be certified despite the inclusion of uninjured members, though it suggested as much.  On remand, Tyson Foods sought a retrial, arguing that ambiguities in the jury's verdict made it impossible to ensure that the aggregate damages award was apportioned only among injured class members.  Bouaphakeo v. Tyson Foods, Inc., No. 5:07-CV-04009-JAJ, 2016 WL 5868081 (N.D. Iowa Oct. 6, 2016).  The jury's verdict had not specified the number of minutes that should be added to each class member's weekly total of hours worked.  This omission, Tyson Foods argued, made it impossible to determine which employees in the class never earned overtime (i.e., suffered injury) despite the inclusion of donning and doffing time because their total hours of work each week never exceeded the requisite 40.  The plaintiffs were able to sidestep this issue, but only by drastically restricting eligibility for the jury's award to employees who worked more than 40 hours per week before including donning-doffing time and whose damages exceeded $50.  In addition, the trial court emphasized that Tyson Foods had opposed bifurcating the trial into a liability phase and a damages phase, and thus could not now be heard to complain about the difficulties with allocating a single damage award.  These developments underscore that employers should carefully consider the risks that attend opposing bifurcation, particularly if they intend to hold plaintiffs or other would-be enforcers to the requirement that each individual seeking recovery establish her own entitlement to a damage award.

Tyson Food's application beyond the wage and hour context remains unresolved.  A forthcoming opinion concerning the suitability of representative evidence in class actions based on claims of unlawful discrimination is anticipated in EEOC v. Bass Pro Outdoor World LLC, No. 4:11­CV­03425 (S.D. Tex.).  In that case, the plaintiffs allege that Bass Pro retail stores engaged in a nationwide pattern or practice of discrimination against Black and Hispanic applicants.  In its recent filing, Bass Pro states that the EEOC is seeking a presumption of discrimination against as many as 300,000 individuals even though the agency's own statistical analysis evaluated only 4,000 potentially affected claimants.  According to Bass Pro, Tyson Food's discussion of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), makes clear that the EEOC's pattern or practice claim cannot be established through representative evidence.  In Dukes, the Supreme Court rejected a nationwide class of female employees alleging sex discrimination, holding that class certification based on statistical differences in female pay and promotion was improper without significant evidence of any common policy.  As Tyson Foods explains, because the class members in Dukes "were not similarly situated, none of them could have prevailed in an individual suit by relying on depositions detailing the ways in which other employees were discriminated against by their particular store managers."  These principles, Bass Pro argues, entitle it to a judgment on the pleadings.  We will continue to monitor this and other cases around the country interpreting Tyson Foods.

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.

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