Tyson Foods lost its bid to overturn an almost $3 million class action judgment against it in a case brought by workers at an Iowa pork-processing factory who contended they did not receive overtime pay for time spent “donning and doffing” protective equipment. The Supreme Court affirmed the judgment in a 6-2 decision. Because Justice Kennedy (who wrote the decision) and Justice Roberts joined the majority, the loss of Justice Scalia had no apparent impact on the outcome.
The plaintiffs obtained an order granting class certification under Rule 23 and approving the case as a collective action under the Fair Labor Standards Act (FLSA). The Supreme Court assumed for purposes of its opinion that the certification standard was the same under both approaches. Because Tyson did not keep records of its employees’ donning and doffing time, at trial, the plaintiffs offered “representative evidence” of the amount of time employees actually spent doing this. Their expert conducted 744 videotaped observations and averaged the time the employees spent putting on and taking off their protective equipment – 18 minutes a day for one department and 21.25 minutes a day for another department. Another expert used this data to determine that all but 212 employees worked overtime without appropriate compensation. Tyson did not challenge the statistical validity of the plaintiffs’ data at a Daubert hearing.
The court of appeals affirmed the district court’s certification order and trial verdict, ruling that the use of statistical sampling evidence was permissible under FLSA precedent. Thus, it was allowable to certify a class pursuant to Rule 23 on the basis of this representative proof as well. The Supreme Court majority agreed.
The court rejected Tyson’s request that it announce a broad rule against the use of sampling evidence in class actions. It emphasized that the plaintiffs’ ability to use a sampling approach depends entirely on the substantive evidence required to prove the precise cause of action, not the form of the case as a class action or individual action. In other words, if sampling is permitted in an individual claim, it also can be used in class action claims. Pursuant to its 1946 decision in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), sampling evidence was permissible in the FLSA context to determine the time employees spent doing uncompensated work. Because each of the 3,344 class members could have filed individual lawsuits and used the same representative evidence to prove the hours they worked, the same evidence was permissible in the class action.
The majority commented that this holding did not deprive Tyson of its defense that the sampling methodology was unreliable. But this defense itself was common to all claims, not individualized. It further stated that its prior condemnation of “trial by formula” in its Wal-Mart decision was not inconsistent. In that case, sampling could not have been used to prove sex discrimination liability in individual claims. Thus, it could not be used in a class action to bridge the proof gap. Permitting the use of sampling in that case would violate the Rules Enabling Act by giving the parties different rights in a class action than they would have in individual cases, just as prohibiting the use of sampling in this case would do the same.
The court refused to address the second certified question of whether a class may be certified if it contains members who were not injured and have no legal right to damages, stating that Tyson abandoned that argument. The majority called the issue of whether uninjured class members may recover damages a question of “great importance” – but not a question fairly presented by this case since the damages award had not been disbursed. In his concurrence, Chief Justice Roberts (joined by Justice Alito) opined that he was not convinced the district court could devise a means of distributing the aggregate award only to injured class members. But he was willing to allow it to try.