U.S. Supreme Court Upholds the Right to Use Statistical Evidence in FLSA Class Actions

On March 22, 2016, the United States Supreme Court held that plaintiffs in a donning and doffing class action properly used representative and statistical evidence to establish class-wide liability in Tyson Foods, Inc. v. Bouaphaeko.   

Employees working in the kill, cut, and retrim departments of the Tyson Food plant in Iowa, argued Tyson violated the Fair Labor Standards Act (FLSA) by failing to compensate them for time “donning and doffing” protective gear. Tyson failed to keep any records of the time employees took for this purpose. As a result, the employees had to rely primarily on a study performed by an industrial relations expert, Dr. Kenneth Mericle. Mericle conducted 744 videotaped observations of employees donning and doffing their gear and averaged the time taken in the observations. Mericle then used the average donning and doffing times and added it to the regular time worked by the 3,344 members in the class action to determine whether they had worked over forty (40) hours in the week. 

At trial, the jury awarded the class $2.9 million in compensatory damages. Tyson sought to reverse the judgment, arguing it was unfair to allow class members to rely on representational evidence to establish damages.  Tyson's primary objections were that some class members had no damages and that the amount of time spent donning and doffing gear varied by job assignment.

Delivering the opinion of the Supreme Court, Justice Kennedy held the class could rely on Mericle’s sample study to prove damages because each class member could have relied on the sample to establish liability had each brought an individual action. Justice Kennedy followed precedent authorizing the use of estimates in wage cases, particularly when the employer failed to keep records of hours worked.  It would otherwise be nearly impossible for plaintiffs to establish a claim in cases where the employer fails to keep time records. He noted “that when employers violate their statutory duty to keep proper records, and employees thereby have no way to establish the time spent doing uncompensated work,” barring the use of statistical evidence would create “an impossible hurdle for the employee.”

While acknowledging "the question whether uninjured class members may recover is one of great importance," Kennedy criticized Tyson for opposing bifurcation of liability and damages.  In so doing, Tyson made it difficult to remove uninjured individuals from the class after the award was rendered. Kennedy indicated that Tyson should not profit from the difficulties it created.

The Court distinguished its 2011 decision in Wal-Mart, which rejected use of statistical analysis to establish liability in a class action for gender discrimination.  Kennedy dispatched the effort to pigeonhole Wal-Mart, noting that the Tyson class members were similarly situated.  This case is an important affirmation of the right to use statistical estimates to enforce FLSA rights and prosecute wage and hour class actions.