Tyson Foods, Inc. v. Bouaphakeo

Plaintiff employees in a pork processing plant owned by Tyson Foods alleged that they were not paid the required overtime wages for time spent donning and doffing required protective clothing for the dangerous activities of killing livestock and cutting and re-trimming the carcasses.  The two activities at issue took place in different departments, required different protective clothing for each department’s employees, and involved different time periods by which employees finished clothing themselves in the required gear.  Tyson Foods had instituted multiple timekeeping policies that eventually credited its employees with compensable time between zero and eight minutes to don and doff the required clothing, but admitted that it had conducted no time analysis for the time credited.   In addition, and likely fatal to its defense, Tyson Foods had not recorded its employees’ donning and doffing times in violation of the Fair Labor Standards Act (“FLSA”).

Since Tyson Foods could not produce records memorializing the individual times required by each of its employees to don and doff their protective clothing, Plaintiffs retained an industrial relations expert, Dr. Kenneth Mericle, to observe and videotape 57 of the possible 3,344 Tyson Foods employees to determine how long it took the employees to don and doff their respective protective clothing.  After 744 videotaped observations, Dr. Mericle calculated that employees in the “kill department” took on average 21.25 minutes to don and doff their protective gear each day (combining both the start and end of a shift and both sides of a meal break), while the employees in the “cut and re-trim department” took 18 minutes.  As was noted by Justice Thomas in his dissent, the range of individual employee times for each session of donning and doffing ranged from as little as 30-40 seconds to over ten minutes.

While the parties stipulated that the donning and doffing of protective clothing was “integral and indispensable” to the rendering work, they disagreed on the issue of commonality of the facts sufficient to support class certification.  Specifically, Tyson Foods argued that because the two departments utilized different protective clothing and because each individual employee would take varying amounts of time to don and doff their gear, the evidence necessary to prove liability would require individualized assessment.  Further, because some employees in fact were recorded taking less time than other employees, there was a high probability that many of the employees would not be owed overtime, which was the gravamen of the class’s claim.  In what would become a potentially fatal defense choice, Tyson Foods relied solely on this lack of commonality and did not attack the statistical analysis performed by Dr. Mericle.

Plaintiffs argued that they were entitled to rely on Dr. Mericle’s statistical analysis because Tyson Foods had not recorded the real time necessary for each employee to don and doff their protective clothing.  The Supreme Court agreed, noting that in the absence of direct evidence (the recorded time), Plaintiffs were entitled to rely upon the unchallenged statistical evidence that supported the inference that employees had taken more time than allotted by Tyson Foods to don and doff their protective gear.  The majority justices noted that as long as each employee would be entitled to use the same statistical evidence in pressing an individual claim, then such evidence could be utilized in a class action setting.

While Tyson Foods represents a major shift in the evidentiary burden in favor of class action plaintiffs, the court’s conservative-leaning justices went to great lengths to limit the holding.  Specifically, Chief Justice Roberts noted that Tyson Foods’ failure to record the employees’ actual time donning and doffing protective clothing essentially forced the Court to evaluate Plaintiffs’ statistical evidence and give weight to the inferences arising therefrom.  Similarly, Tyson Foods’ failure to attack Dr. Mericle’s analysis (such as a Daubert challenge) was mentioned both in the Chief Justice’s concurrence and Justice Thomas’s dissent.  For his part, Justice Thomas relied on earlier precedent to find that Dr. Mericle’s analysis was statistically flawed, despite a lack of challenge by Tyson Food.  But the warning has been given – representative sampling is a valid form of evidence if left unchallenged or sufficiently fortified to survive direct evidence or a Daubert challenge.