Currently pending before the United States Supreme Court is Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, in which the employer is challenging certification of a class of employees seeking unpaid overtime. After oral argument was held on November 10, 2015 (which was prior to Justice Scalia’s death), the principal issue appears to be whether representative evidence—in this instance, a proposed statistical analysis calculating the “average” time spent on a particular task as opposed to an employee’s actual individualized and personal circumstances—is sufficient to prove liability and damages at trial. A decision is expected to be issued before the Court’s term ends in June 2016.

In Tyson Foods, employees who worked in a Tyson pork-processing facility in Iowa, brought overtime claims against the company under the Fair Labor Standards Act (FLSA) and state law for the company’s failure to pay them overtime compensation for donning (putting on) and doffing (taking off) personal protective equipment and clothing before their shifts formally started and after their shifts ended. The district court certified the FLSA claim as a collective action and the state law claim under Rule 23 of the Federal Rules of Civil Procedure. After a nine day trial the jury returned a verdict in the plaintiffs’ favor. The plaintiffs had proved liability and damages by using individual timesheets, along with the average times for donning, doffing, and walking to their assigned stations calculated from 744 employee observations.

On appeal, the company took issue with the use of “averaged” representative evidence to prove liability and damages at trial and argued that the district court erred in certifying a class given the factual differences among the class members. The company heavily relied on the Court’s decision Walmart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011), in which the Court disapproved of representative evidence in a sex discrimination class action, which it characterized as “Trial by Formula.”

For almost 70 years, however, the Court’s decision in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), has been the applicable standard applied in FLSA cases, permitting employees to use representative testimony to prove their case when their employer has failed to keep accurate time records. Relying on this precedent, the Department of Labor, which enforces the FLSA, argued in an amicus curiae brief submitted in support of the employees that because this case was brought under the FLSA (not a discrimination statute like the one in the Dukes case) the employees’ proof was sufficient.

At oral argument, several justices, including Justice Kagan and Justice Kennedy, appeared to agree with the government and focused on the application of Mt. Clemens and the use of representative evidence by employees in FLSA cases. In fact, he Court’s more recent decision in Dukes was not raised at all by the Court at oral argument. Notably, Justice Kennedy appeared to suggest that the burden of proof was lower in FLSA cases than in other employment-related class actions because in this case Mt. Clemens was the substantive law that applied. Justice Kennedy’s questions at argument further suggest that he may vote with the four more liberal Justices of the Court (Justices Breyer, Ginsberg, Kagan, and Sotomayor), allowing the Court to issue a precedential opinion issued by a majority of the Court (rather than issuing a 4-4 tie opinion, which would be the outcome if Justice Kennedy were to rule with the three more conservative justices who remain on the Court after Justice Scalia’s death).

Trief & Olk represents employees in actions under the FLSA and state laws challenging unlawful wage and hour practices, such as failing to pay minimum wages and overtime, both in collective and class actions. Employees that come to Trief & Olk often express concern that they cannot bring a lawsuit against their employer for unpaid wages because their employer did not keep records of the hours they worked. If the comments from the Justices of the Supreme Court are any indication, employees can remain assured that the standard provided in Mt. Clemens, which has been the law for almost 70 years, will remain intact and they will be able to use testimony and other representative proof to demonstrate their claims.