Earlier this month, on November 10, 2015, the United States Supreme Court heard oral argument in Bouaphakeo v. Tyson Foods, Inc., No. 12-3753 (8th Cir. Aug. 25, 2014) (slip op. available here), cert. granted, 83 U.S.L.W. 3765 (U.S. June 8, 2015) (No. 14-1146). Class action practitioners throughout the country—both plaintiff and defense attorneys—have watched this case closely because of the potentially far-reaching implications of the forthcoming opinion. The Court granted cert. to consider: (1) whether a court can disregard differences among individual class members when the plaintiff will prove liability and damages using certain statistical techniques; and (2) whether a class is certifiable despite containing a substantial number of class members who were not injured.
Originally filed in 2007, the primary issue in the case was whether Tyson properly compensated the class members, hourly employees at a Tyson meat-processing facility, for all work time. Tyson implemented a policy that compensated employees only for so-called “gang time,” when workers were present at their workstations on Tyson’s production line and the line was moving. The plaintiffs argued that this policy was illegal because it failed to compensate them for the time spent “donning and doffing” personal protective equipment before shifts, before and after lunch, and at the end of the shift. The plaintiffs also sought compensation for the time spent carrying items from their lockers to the production floor. Interestingly, Tyson categorized protective equipment items as either “unique” or “non-unique” to the food processing industry. Before February 2007, Tyson added four minutes of time to each employee’s timecard for donning and doffing time for unique items, to compensate those who worked in departments where knives were used. Then, from February 2007 to June 2010, Tyson added several minutes per day to each employee’s paycheck to compensate for pre- and post-shift walking time. The district court certified the case as a class action under Rule 23 and as a collective action under the Fair Labor Standards Act (FLSA) because the substance and basis of the state law claim and the FLSA claim were “virtually indistinguishable” in that the claims involved identical facts and similar legal theories. Slip op. at 4, fn2 (quoting Salazar v. Agriprocessors, Inc., 527 F. Supp. 2d 873, 884). The case went to trial, and the jury returned a verdict in the plaintiffs’ favor for over $2.8 million, with the final judgment exceeding $5.7 million after adding liquidated damages. The Eighth Circuit Court of Appeals affirmed the judgment, and Tyson filed a cert petition in the Supreme Court.
Before the Supreme Court, Tyson argued that the plaintiffs’ use of statistics demonstrating average donning, doffing, and walking times to help prove liability and damages was improper (brief of petitioner Tyson Foods available here). Because employees wore different protective equipment and took varying amounts of time to put it on and take it off, Tyson argued that each class member could not prove that donning and doffing activities resulted in uncompensated overtime. It contended that the usage of statistical inferences was reversible error, violated its due process rights to raise every possible defense, and warranted decertification. Tyson also argued that certification was improper because the class included large numbers of employees who had not been injured. In response, the employees argued that certification was proper, and that the record demonstrated that Tyson could have recorded donning and doffing time, but chose not to (respondent’s brief available here). The plaintiffs also argued that Tyson’s officials admitted that the vast majority of class members routinely worked six-day, 48-hour workweeks and were, therefore, eligible for overtime. Accordingly, the employees were entitled to prove the “approximate” time worked under Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), because Tyson failed to fulfill its statutory obligation to keep proper time records. The employees also argued that no rule prohibited certifying a class with some uninjured class members.
At oral argument, Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan appeared sympathetic to the employees. The gist of their questioning indicated that the Tyson’s objection to statistical and/or inferential proof of overtime entitlement was largely a self-created problem, and Tyson’s arguments against using the Mt. Clemens rule in this case were not well-taken. In addressing the issue of certifying a class with some uninjured members, several justices, including Justice Breyer, drew a distinction between certifying a class with uninjured members and paying the uninjured members after determining liability. Responding to petitioner Tyson’s argument that it could not determine who to pay and who not to pay because the jury awarded a lump sum judgment, Justice Kagan noted that Tyson had refused to bifurcate trial proceedings and, on remand, the court “is going to do something like the bifurcation that you rejected, which is . . . figure out in this highly ministerial way who worked more than 40 hours, and so who is entitled to share in the judgment.”
Ultimately, only the Court’s forthcoming opinion will end the suspense for class action practitioners. That said, most plaintiffs’ class action attorneys are cautiously optimistic that—after years of dealing with Concepcion, Dukes, and other anti-class action rulings—the Supreme Court finally may deliver a victory for employees and consumers.
Andrew Sokolowski, Senior Counsel
CAPSTONE LAW APC