On March 22, 2016, the United States Supreme Court issued its much anticipated decision in Tyson Foods, Inc. v. Bouaphakeo, a donning and doffing case in which a class of employees had been awarded $2.9 million following a 2011 jury trial that relied on statistical evidence. (A subsequent liquidated damages award brought the total to $5.8 million.)
In a 6-2 opinion, the Supreme Court affirmed that award. While the Supreme Court’s decision may not have been the outcome many were expecting, the Court did not issue a broad ruling regarding the use of statistical evidence in class actions, and the decision may prove to have limited application.
In 2007, Tyson Foods employees at a meat processing facility in Iowa filed suit under both state law and the Fair Labor Standards Act (“FLSA”), alleging that they were not paid overtime for the time spent donning and doffing protective gear. Because Tyson Foods did not have records of the amount of time employees actually spent in those activities, employees’ filled the “evidentiary gap” at through the presentation of representative evidence. This included not only employee testimony and video recordings, but, most importantly, an expert study showing the average time employees spent in such activities as observed by the expert.
In seeking to reverse the jury award, Tyson Foods argued to both the Eighth Circuit Court of Appeals and the Supreme Court that the amount of time spent donning and doffing varied from person to person – and that some persons did not work sufficient time to be entitled to overtime in any event – such that individualized issues predominated over common ones. And Tyson Foods argued that the use of statistical evidence presented it from presenting individualized defenses.
In making these and other arguments, Tyson Foods sought a broad ruling prohibiting the use of statistical evidence in class actions. The Supreme Court rejected that request, concluding that such a rule would “reach too far.” And it explained that its landmark 2011 Wal-Mart v. Dukes decision “does not stand for the broad proposition that a representative sample is an impermissible means of establishing class-wide liability.”
Instead, the Supreme Court held that a “representative or statistical sample, like all evidence, is a means to establish or defend against liability. Its permissibility turns not on the form a proceeding takes — be it a class or individual action — but on the degree to which the evidence is reliable in proving or disproving the elements of the relevant cause of action.” It further explained, “Whether and when statistical evidence can be used to establish classwide liability will depend on the purpose for which the evidence is being introduced and on ‘the elements of the underlying cause of action’ . . . .”
Under the facts presented to it, the Supreme Court concluded that statistics could be used to infer the amount of time Tyson Foods employees spent donning and doffing because those statistics could have been used in individual suits by the employees.
Importantly, in reaching its conclusion, just as it declined to issue a blanket rule forbidding the use of statistical evidence, the Court also declined to issue a broad rule affirming the use of statistical evidence in all class actions.
The Court noted that its opinion “is not to say that all inferences drawn from representative evidence in an FLSA case are ‘just and reasonable.’ . . . . Representative evidence that is statistically inadequate or based on implausible assumptions could not lead to a fair or accurate estimate of the uncompensated hours an employee has worked.” In other words, a defendant can challenge an expert’s methodology, which Tyson Foods did not do.
The Court concluded its discussion of representative evidence by declining to issue any broad rule: “The Court reiterates that, while petitioner, respondents, or their respective amici may urge adoption of broad and categorical rules governing the use of representative and statistical evidence in class actions, this case provides no occasion to do so. Whether 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. In FLSA actions, inferring the hours an employee has worked from a study such as [the expert’s] has been permitted by the Court so long as the study is otherwise admissible. . . . The fairness and utility of statistical methods in contexts other than those presented here will depend on facts and circumstances particular to those cases.”
While the decision is a victory for Tyson Foods employees, it is those sentences quoted directly above that will likely limit the decision from having widespread application. The decision will no doubt be cited by plaintiffs’ counsel in class and collective actions to support their efforts to use statistical evidence to establish both liability and damages in their cases, even where there are individuals who have not been harmed. And defense counsel in those cases will just as certainly point to language in the decision that would indicate that it is a narrow ruling limited to its facts.
Not unimportantly, one issue left unaddressed by the Court pertains to Tysons Foods’ argument that uninjured class members should not recover damages. The Court declined to address that issue, holding that that question was not fairly presented to it in this case because the damages award has not yet been distributed and the record does not indicate how it will be done. Accordingly, Tyson Foods may raise a challenge to the allocation method when the case returns to the trial court for distribution of the award to address persons who were not injured.