Supreme Court Permits Use of Representative Evidence [Update re Tyson Foods]

Plaintiffs in class actions scored a victory in the Supreme Court, with a 6-2 opinion authored by Justice Kennedy, in Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. ____ (2016). In Tyson Foods, the Court affirmed that the use of so-called “representative evidence” – such as a statistical sample – is permissible for establishing liability in a class or collective action.

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 gear 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. The plaintiffs prevailed at trial, proving liability and damages by using information from individual plaintiffs’ timesheets, along with a study performed by an expert, who analyzed the average times for donning, doffing, and walking to their assigned stations, based on 744 employee observations.

The defendant challenged the use of this study, and sought to have the Supreme Court issue a sweeping rule preventing class action plaintiffs from using statistical sampling altogether, relying on an earlier Supreme Court case, Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011). Justice Kennedy rejected the defendants’ argument that Wal-Mart v. Dukes stands for a wholesale rejection of representative evidence. Slip op. at 13. Instead, he explained that “[w]hether a representative sample may be used to establish classwide liability will depend on the purpose for which the sample is being introduced and on the underlying cause of action. . . . The fairness and utility of statistical methods in contexts other than those presented here will depend on facts and circumstances particular to those cases.” Slip op. at 15.

Here, because Tyson Foods had no records from which the plaintiffs could establish the amount of time spent donning and doffing the protective gear and walking to their workstations, the jury could rely on the plaintiffs’ expert’s statistical study. Because Tyson Foods did not offer evidence to discredit the substance of the statistical analysis (such as evidence that the study was inaccurate or that the sample was not statistically valid), the jury could draw reasonable inferences – as it did – regarding the amount of time spent on the activities at issue.

Barely a week after Tyson Foods, the Supreme Court signaled its acceptance of the use of “representative evidence,” when it declined to review a pair of cases on appeal from the Pennsylvania Supreme Court, in Wal-Mart Stores, Inc. v. Braun and Wal-Mart Stores, Inc. v. Hummel. There, the Pennsylvania state court permitted the plaintiffs to calculate damages for the entire class of almost 200,000 employees based on expert analysis extrapolating from testimony of six plaintiffs. Wal-Mart appealed to the Pennsylvania Supreme Court, protesting what it viewed as “trial by formula.” With the U.S. Supreme Court’s denial of the review, the Pennsylvania court’s ruling will remain good law.

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 any records of their time. These recent decisions by the Supreme Court reaffirm what has long been the law – an employee may prove such claims even if they can only extrapolate from the experience of other employees to prove their own claims.