Federal Rule of Civil Procedure 23(b)(3) requires that, before a class is certified, a district court must find that questions of law or fact common to class members predominate over questions affecting only individual members.” In a recent decision by the Supreme Court, the majority explained that “[i]n a case where representative evidence is relevant in proving a plaintiff’s individual claim, that evidence cannot be deemed improper because the claim is brought on behalf of a class.” Tyson Foods, Inc. v. Bouaphakeo, et al., No. 14-1146, 2016 WL 1092414 (S. Ct. 2016).

In Tyson, employees at a Tyson Foods’ pork processing plant filed suit against their employer for violations of the FLSA. (The employees also brought claims under the Iowa Wage and Payment Collection Law. However, the Supreme Court does not make any distinctions between the claims in its opinion because the parties did not dispute that, in order to violate that Iowa statute, the employee had to do no more than show a violation of the FLSA. The parties also did not dispute that the standard for certifying a collective action was any more or less stringent than the standard for certifying a class under the Federal Rules. The Supreme Court did not decide whether that was correct, but instead assumed it was correct, and therefore, explained that for purposes of this case, if certification of the employees’ class action under the Federal Rules was proper, certification of the collective action was proper as well.) The employees alleged that time spent putting on and taking off protective gear was integral and indispensable to their hazardous work and that the employer’s policy of not paying them for that time violated the FLSA.

In Tyson, the parties did not dispute that there were questions common to all class members, e.g., whether the time spent putting on and taking off the protective gear was compensable time under the FLSA. The employer argued that class certification was improper in this case because the court would have to make person-specific inquiries into individual work time. Employees argued that individual inquiries were unnecessary because they could use “representative evidence” including employee testimony, video recordings of time spent taking on and off protective gear at the plant, and a study performed by an industrial relations expert, Dr. Kenneth Mericle (the “Mericle Study”). The employer responded by arguing that the use of the representative sample “absolve[s] each employee of the responsibility to prove personal injury, and thus deprives [the employer] of any ability to litigate its defenses to individual claims.”

The Supreme Court affirmed the lower courts by holding that the employees could rely on representative evidence to establish liability. The Court explained that the permissibility of representative evidence “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.” The Court also noted that if the representative evidence would have been sufficient proof in an individual action, that evidence is a “permissible means of establishing the employees’ hours worked in a class action.”

Key Takeaways:

  1. Keep Records! The FLSA requires an employer to “make, keep, and preserve . . . records of the persons employed by him and of the wages, hours, and other conditions and practices of employment.” 29 U.S.C. § 211(c). In Tyson, the employer violated its duty to keep proper records because it failed to keep records of the time employees spent putting on and taking off their protective gear. The Supreme Court explained that an employer cannot categorically object to the use of representative data as proof in FLSA cases; especially when its own failure to keep appropriate records is what created the absence of individualized proof. Therefore, Tyson is a reminder to employers that they must be extremely diligent in maintaining time and pay records as required by the FLSA.
  2. Use Pay Policies That Obviate the Issue. Tyson compensated some, but not all, employees for their donning and doffing time. If it had followed a policy of compensating all employees for donning and doffing time, there would have been no factual issue to litigate. Therefore, employers should consider adopting universal pay policies that eliminate the morass of difficult, fact-specific determinations associated with the compensability of donning and doffing time.
  3. In Litigation, Challenge the Methodology Used. The majority notes that “not all inferences drawn from representative evidence in an FLSA case are ‘just and reasonable.’” The Supreme Court further explains that 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.” However, the Supreme Court notes that in Tyson, the employer did not once challenge the employee’s experts’ methodology under Daubert. As a result, the Supreme Court did not, and could not, consider whether it was legal error to admit that evidence.