Supreme Court Rebuffs Predominance Challenge to “Donning and Doffing Class”
Yesterday, the Supreme Court issued its opinion in Tyson Foods, Inc. v. Bouaphakeo, voting 6 – 2 to uphold a jury verdict in favor of employees in a donning and doffing action. The class of employees, certified under Iowa Wage and Hour law pursuant to Rule 23, and as a collective action under the Fair Labor Standards Act, worked in the kill, cut and retrim departments of a pork processing plant. They were required to use protective gear and complained that they weren’t paid for the time spent to put on and take off the necessary protection equipment. Because Tyson didn’t keep records regarding this “donning and doffing” time, the employees (a 3,344 member class) relied on a study performed by an industrial relations expert to prove the average time spent on that activity.
A jury found Tyson liable for failure to pay the employees and awarded damages of $2.9 million, significantly less than the amount provided for in the expert’s study. The Eighth Circuit, over a dissent, affirmed the verdict in a decision we previously commented on in this post.
By direct contrast to the Supreme Court’s 2011 decision in Dukes v. Wal-Mart Stores, Inc., the parties in Tyson did “not dispute that there are important questions common to all class members, the most significant of which is whether time spent donning and doffing the required protective gear is compensable work under the FLSA.” (Wal-Mart held that the absence of a common question doomed the class). But the difficulty arose from the fact that each person in the class needed to establish that the amount of time spent donnng and doffing, when added to his regular hours, amounted to more than 40 hours in a given week, so that overtime was owed. How can this be resolved, Tyson suggested, on a class-wide basis?
The key question, as Justice Kennedy framed it, was whether it could be inferred – based on the evidence – that “each employee donned and doffed for the same average time observed in the [expert’s] sample.” Six justices held that it could, and rejected the notion that so-called “representative evidence” was always impermissible to establish liability in favor of a class. Instead, the court determined that “in many cases, a representative sample is ‘the only practicable means to collect and present relevant data’ establishing a defendant’s liability.”
Distinguishing Wal-Mart, the Court emphasized that representative evidence could not be used as a “means to overcoming [the] absence of a common policy.” In Wal-Mart, the “employees were not similarly situated,” and the evidence submitted in favor of one employee’s claim was not probative of another’s. In Tyson, by contrast to Wal-Mart (where “the experiences of the employees . . . bore little relationship to one another”), each employee “worked in the same facility, did similar work and was paid under the same policy.”
The Court gave short shrift to the second question upon which it had accepted certiorari, namely whether a class may be certified if it contains “members who were not injured and have no legal right to any damages.” In its brief, Tyson had reframed its argument and, in the Court’s estimation, abandoned the argument from its petition. The Court acknowledged that “whether uninjured class members may recover is one of great importance,” but found it was not fairly presented in the case before it, principally because the “damages award has not yet been disbursed nor does the record indicate how it will be disbursed.” In a concurrence, Chief Justice Roberts – who observed that “hundreds of class members suffered no injury” – expressed skepticism that the District Court could devise any means to distribute the aggregate award only to injured class members.