“The U.S. Supreme Court recently deviated from its historically stringent view on class certification and affirmed an Eighth Circuit decision to uphold certification of a class of Tyson Foods, Inc. employees who brought suit against Tyson for a violation of the Fair Labor Standards Act of 1938 (FLSA),” Shook Miami attorneys Frank Cruz-Alvarez and Rachel Canfield explain in an April 13, 2016, analysis for the Washington Legal Foundation’s Legal Pulse.

The article first describes the suit’s origins; Tyson initially paid all employees for an equal amount of time spent donning and doffing protective gear but later adjusted the policy to pay some employees for additional “don and doff” time. Cruz-Alvarez and Canfield note that “Plaintiffs alleged Tyson’s failure to compensate them for time spent performing this ‘integral and indispensable’ work activity violated the FLSA by lengthening their workweek beyond forty hours without providing them with overtime pay.”

They also note that Tyson did not keep records of don-doff time, so “employees relied on representative evidence,” all aimed at calculating the average time that each group of employees spent to don and doff their protective gear. The company challenged “whether certification based on representative evidence was sufficient to satisfy Rule 23(b)(3)’s requirement that ‘questions of law or fact common to class members predominate over any questions affecting only individual members.’”

“Whether Tyson foreshadows an overall shift in the Court’s attitude toward class-action certification remains to be seen,” Cruz-Alvarez and Canfield conclude. “Tyson’s language indicates the decision is limited. The decision itself articulates a more clearly defined predominance analysis and highlights important factors to consider in the future, such as whether a business should maintain adequate records of statutorily required information or whether to implement uniform policies. It also alerts litigators to the importance of raising a Daubert challenge or considering whether challenging a plaintiff’s proposal to restructure the proceedings is favorable in the long term.”