The United States Supreme Court recently issued a key ruling involving class action litigation. In Tyson Foods, Inc. v. Bouaphakeo, the high court was asked to consider whether the plaintiffs could use the “representative evidence” method of proving predominance according to Federal Rule of Civil Procedure 23(b)(3).
The plaintiffs were employees in Tyson’s Iowa-based pork slaughtering, cutting, and retrimming departments. Due to the nature of the work performed, the workers were required to don specific protective gear prior to beginning their work day. The type of equipment they needed to wear varied based on the department in which they were assigned to work on any given day. Based on an injunction issued by a federal court in prior years, Tyson was required to compensate each employee an additional four minutes of pay each day to reflect the amount of time required to don and doff the protective gear, which were referred to by the company as “K-code time.” Sometime in 2007, Tyson ceased making these payments to some of its employees while continuing to compensate others.
The non-compensated plaintiffs filed a class action lawsuit, claiming that the failure to pay the K-code time compensation violated the federal Fair Labor Standards Act of 1938. This law requires, among other things, that employees receive compensation in the amount of time-and-a-half for all hours worked in excess of 40 hours per week. Unfortunately, Tyson failed to maintain records reflecting the amount of time it actually took employees to don and doff the protective gear. This meant that the plaintiffs were unable to demonstrate exactly how much overtime pay each employee was entitled to receive, or whether the time it took to don and doff protective gear resulted in an amount of hours worked in excess of the 40-hour limit.
At trial, plaintiffs offered “representative evidence” to show the average number of minutes it takes an employee to don and doff the protective gear, based on 744 taped observations. Based on this evidence, the plaintiffs’ experts concluded that Tyson had failed to compensate several thousand employees, tallying roughly $6.7 million in unpaid wages.
The jury entered a verdict in favor of the plaintiffs, and Tyson moved to set aside the verdict, arguing that variances in the amount of time it takes each employee to don and doff protective gear created an improper level of variation among the class action members, thereby failing to comply with FRCP 23(b)(3)’s predominance requirement. The district court denied Tyson’s motion, and the Eighth Circuit Court of Appeals affirmed.
On appeal to the United States Supreme Court, the high court concluded that since each member of the class could rely on the evidence establishing the average donning and doffing time in an individual suit against Tyson, the evidence is a permissible method of proving liability on a class-wide basis. The court provided an important statement regarding the use of representative evidence in future class action cases, stating that its appropriateness will be determined according to an analysis of why the representative evidence is being used and the nature of the case itself.
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