The Supreme Court this week in Tyson Foods, Inc. v. Bouaphakeo, 577 U. S. ____ (2016), upheld a $2.9 million verdict for unpaid overtime owed by Tyson Foods to its employees for uncompensated time spent putting on and taking off (i.e., “donning and doffing”) protective gear before and after their shifts. Tyson paid workers for time spent at their workstations, but neither tracked nor paid the time workers spent donning and doffing their gear. The verdict represented overtime pay owed where the donning and doffing caused the total time worked to exceed 40 hours per week.

Tyson argued that the employees’ claims were too individualized to be resolved on a classwide basis because different workers wore different equipment and took varying amounts of time to put on and take off their equipment. Plaintiffs, on the other hand, argued that individual inquiries were unnecessary because the average time to don and doff protective gear could be used. To this end, the plaintiffs hired an expert who conducted hundreds of videotaped observations, analyzed how long various donning and doffing activities took, and calculated the average time.

Tyson argued this type of averaging, or “representative evidence,” was improper in class actions. The District Court and Court of Appeals for the Eighth Circuit (in a decision we commented on here), and now the Supreme Court disagreed. Justice Kennedy’s majority opinion explained that, in some circumstances, representative evidence can be used to show classwide liability. The key inquiry is “whether the sample at issue could have been used to establish liability in an individual action.” In this case, the expert’s averages could have been used by the individual employees if they had each brought separate suits because “each employee worked in the same facility, did similar work, and was paid under the same policy” and “under these circumstances the experiences of a subset of employees can be probative as to the experiences of all of them.” Therefore, it was permissible to use the representative evidence to show classwide liability.

Notably, the Supreme Court contrasted Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338 (2011), which involved a class of 1.5 million female employees alleging discrimination. In that case, the Court found that the employees were not similarly situated, and therefore, if they employees had all brought individual suits, “there would be little or no role for representative evidence.”

To rebuke the potential for plaintiffs to use representative evidence in this way, employers should take measures to accurately track and pay for all time worked including non di minimis donning and doffing time. As we mentioned in our previous post, the consequences of failing to do so can result in possibly overpaying employees for wages they did not rightfully earn.