In a case that could change how wage and hour class and collective actions are litigated, Tyson Foods, Inc. recently filed its opening Supreme Court brief. Tyson seeks reversal of a $5.8 million judgment in favor of meat processing employees who claimed to have worked off the clock.

As we reported in June, the Tyson Foods case is likely to have a profound impact on wage and hour litigation. It could result in the Supreme Court’s first discussion of what it means for employees to be “similarly situated” under FLSA Section 216(b) and of how the standards for certifying a Rule 23(b) class action apply to wage and hour cases.

As expected, Tyson’s opening brief parallels its cert petition. The case should not have been certified as a class action or as an FLSA collective action, Tyson argues, because the plaintiffs relied on “statistical evidence that masks, rather than accounts for, differences among individual class members.” In certifying the class, the court relied on expert testimony as to the average time employees spent donning and doffing equipment, even though the expert acknowledged that the actual times varied widely among class members, depending on their job classifications and their equipment combinations.

“[T]he standards governing certification of a collective action under the FLSA can be no less stringent” than those articulated in Wal-Mart Stores, Inc. v. Dukes for certification of a Rule 23(b)(3) class, Tyson argues. e Thus, the company argues, the variations described above mean the litigation would not provide common answers to the questions of (1) whether an employee worked more than 40 hours per week and, (2) if so, whether Tyson properly paid the employee for that overtime. Although the lower courts found that common issues predominated because Tyson’s compensation policy for donning and doffing time applied to all of the employees, Tyson point out that the time variations are “outcome determinative because they control whether or not a particular plaintiff worked any unpaid overtime at all.”

In addition, Tyson states that using statistical averages violated the Rules Enabling Act and the Due Process Clause. “No court would allow an individual employee to meet his ‘burden of proving that he performed work for which he was not properly compensated by submitting evidence of the amount of time worked by other employees who did different activities requiring a different amount of time to perform,” Tyson writes (quotation marks omitted). “Yet that is exactly what happened here.” Tyson explains: plaintiffs obtained classwide damages by applying the expert’s average times to all class members despite evidence that some class members spent less time donning and doffing equipment.

This “trial by formula” deprived Tyson of its right to raise individualized defenses in violation of Due Process and the Rules Enabling Act, Tyson argues. “Rather than challenging whether individual class members suffered any injury or damages, Tyson could only attack plaintiffs’ supposedly ‘representative’ evidence as biased, unreliable, and not actually representative of anyone in the class.” Tyson also notes that using averages to prove liability for the class as a whole conflicted with the Court’s command in Wal-Mart Stores, Inc. v. Dukes that class-wide liability cannot be based purely on extrapolation from unproven assumptions about individual class members.

Finally, Tyson argues that class certification was improper because the class includes hundreds of uninjured plaintiffs who, as a result, can collect damages under the jury’s verdict. Under Article III, “federal courts cannot order money to be paid to an uninjured plaintiff,” and the FLSA limits a court’s authority under the Act to providing redress for “unpaid overtime compensation.” Thus, Tyson argues, class or collective actions including uninjured members cannot be certified.