Supreme Court Decision – Class Action Limits Reach of Wal-Mart v. Dukes
In a ruling favorable to class-action plaintiffs, the United States Supreme Court recently held that, in certain circumstances, workers may use averages and other statistical analyses to establish class-wide liability. In Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. ___ (2016), Justice Anthony Kennedy, writing for a 6-to-2 majority, upheld a lower court’s order denying decertification, and $5.8 million judgment, to a class of 3,344 employees at Tyson’s Iowa meat-processing facility.
In Tyson, plant employees alleged that they were entitled to overtime pay and damages because they had not been properly compensated for the total time spent putting on and taking off protective equipment and walking to work stations. The workers brought a proposed Federal Rule of Civil Procedure 23(b)(3) class action for unpaid overtime in violation of state wage-and-hour law, as well as a putative collective action under the Fair Labor Standards Act (“FLSA”). The employees argued that they did not receive statutorily mandated overtime pay for time spent donning and doffing protective equipment.
Because Tyson did not keep records of the time employees spent putting on and taking off protective gear, the plaintiffs used expert testimony to establish the average time spent donning and doffing. The experts relied on videotaped observations of 744 workers, as well as employee testimony, to determine how long, on average, it took the workers to get ready. Tyson objected to the use of the expert testimony to establish class-wide liability, arguing that there was a wide variation in the amount of time it took each individual worker to don and doff his or her gear, and some workers were not entitled to any overtime pay at all.
The Court rejected Tyson’s argument, and held that representative and statistical evidence was sufficient to establish class-wide liability. The Court reasoned that, because such evidence would have been admissible to show an employer’s liability in an individual lawsuit, it should be similarly admissible in a class or collective action. That is, if the employees had litigated their cases individually, each employee would have been properly allowed to introduce the expert’s study to prove the hours he or she worked. Because each individual could have relied on the study in an individual case, aggregating the claims of thousands of individuals was also permissible.
The Court’s ruling was premised, in part, on the fact that Tyson did not maintain proper records, stating that the workers should not suffer because their employer failed to keep records. The employees were essentially required to offer the sample to “fill an evidentiary gap created by the employer’s failure to keep adequate records.”
The Court distinguished Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), in which the Court previously rejected a “trial by formula” approach, holding that evidence from about 120 women could not be used to show discrimination against 1.5 million employees in a Title VII discrimination class action. The Court stated, “Wal-Mart does not stand for the broad proposition that a representative sample is an impermissible means of establishing class-wide liability.” Whereas the employees in Wal-Mart were not similarly situated, and thus could not have prevailed in an individual suit by relying on depositions describing the ways in which other employees were discriminated against, the Tyson Court noted that the Tyson employees worked in the same facility, did similar work, and were paid under the same policy. Under these circumstances, the Court found, the experiences of a subset of employees can be probative as to the experiences of all of them.
The Court declined to adopt any broad and categorical rules regarding the use of representative and statistical evidence in class actions. Rather, the Court found that whether a representative sample may be used to establish classwide liability will depend on the purpose for which the sample is being introduced and the elements of the underlying cause of action.
The Court did not reach the issue of whether a class can be certified if it includes members who were not injured and do not have a legal right to damages. Instead, the Court found that, based on the record before the Court, such a question was premature because the damage award had not yet been disbursed and the record did not indicate how it would be disbursed.