Statistical Analysis be used to win Class Action Cases: U.S. Supreme Court
On March 22, 2016, the U.S. Supreme Court affirmed a $5.8 million judgment against one of the world’s largest food processors. The recent 6-2 decision made it little easier for wage and hour plaintiffs to win class actions. The court held that plaintiff employees can use averages and other statistical analyses to establish class liability.
In Tyson Foods, Inc. v. Bouaphakeo, 194 L. Ed. 2d 124 (2016), the plaintiff-employees of an Iowa pork-processing plant brought both class and collective action claims against the company, alleging that they were never paid for the time spent "donning and doffing" the requisite protective gear. In response to it, Tyson argued that the individual questions would "predominate" over questions relevant to the entire class, defeating certification under Rule 23(b)(3) of the Federal Rules of Civil Procedure. Thus, on finding out that donning and doffing was compensable work as putting on and taking off protective gear was an integral and indispensible part of their work in the factory, the Iowa jury in September 2011, awarded the employees $2.9 million in unpaid wages as well as an additional 2.9 million dollars in liquidated damages for violating the Fair Labor Standards Act of 1938 (FLSA), 52 Stat. 1060, as amended, 29 U. S. C. §201 et seq.
In 2014, the Eighth Circuit Appellate panel upheld the judgment of Iowa jury. See Bouaphakeo v. Tyson Foods Inc., 765 F.3d 791 (8th Cir. 2014).
Later on, Tyson argued that there was a great disparity in the time each worker took to get ready based on his responsibilities and that the usage of averages would lead to recovery for individuals who had not worked the requisite hours. The court rejected this argument, holding that statistical evidence may be used in class actions to the same extent that it could be used in an action by an individual class member.
When the case came before the U.S. Supreme Court, the defendant argued that the usage of averages in statistical data was improper and they specifically argued against the use of averages as the time it takes an individual to put on and remove protective gear and walk to the assigned areas varies between individuals. The majority of the Supreme Court did not agree with this argument and instead indicated that averages would not even be necessary if the defendant had maintained proper records. In doing so, the court essentially held that there is no general rule barring the use of statistics to prove class-wide liability in a class action such as this one.
The Supreme Court decision is a reminder to not only compensate for the time spent donning and doffing but to keep proper time records. The failure to do so can result not only in wage and hour damages but liquidated damages.