Tyson convinces Court to review FLSA, donning and doffing case

Tyson Foods, Inc. has convinced the U.S. Supreme Court to review a decision of the Eighth Circuit that rejected its bid to overturn a district court order certifying an FLSA collective action and a Rule 23 class action in an overtime suit brought by hourly production workers at a pork processing plant who alleged they should have been paid for time spent donning and doffing personal protective equipment. The petitioner said the appeals court, in Tyson Foods, Inc. v Bouaphakeo, sanctioned the use of “seriously flawed procedures” to certify FLSA collective and Rule 23(b)(3) class actions.

According to the petition, the district court certified the class based on the existence of common questions about whether these donning and doffing activities were compensable “work,” even though there were “differences in the amount of time individual employees actually spent on these activities” and “hundreds of employees worked no overtime at all.” The court allowed the plaintiffs to prove liability and damages with “common” statistical evidence, said petitioners, that “erroneously presumed all class members are identical to a fictional ‘average’ employee.” This created a conflict with Wal-Mart Stores, Inc. v Dukes and Comcast v. Behrend.

Eighth Circuit opinion. A divided Eighth Circuit panel had rejected Tyson’s contention that class certification was improper, noting that since class members were all subject to the same policy, worked in the same plant, and used similar equipment, the complaint was not dominated by individual issues. Also rejected was Tyson’s contention that the plaintiffs improperly relied on a formula to prove liability. Judge Arlen Beam dissented.

According to Tyson, factual differences between the plaintiffs–differences in PPE and clothing between positions, the individual routines of employees, and variation in duties and management among departments—made class certification improper. In Tyson’s view, these differences did not allow the class action to “generate common answers apt to drive the resolution of the litigation.” However, the appeals court noted that Tyson had a specific company policy that applied to all class members who worked at the same plant and used similar equipment.

While applying expert testimony to general answers for individual overtime claims did require inference, the Eighth Circuit found that this inference was allowable. Although the employees varied in their donning and doffing routines, the majority concluded that the complaint was not “dominated by individual issues” such that varied circumstances prevented a “one stroke” determination. Thus, it concluded that the district court did not abuse its discretion in certifying the class.

Tyson also contended that the class should be decertified because evidence at trial showed that some class members did not work overtime and would receive no FLSA damages even if Tyson under-compensated their donning, doffing, and walking. Tyson also suggested that the plaintiffs improperly relied on a formula to prove liability. But the Eighth Circuit found they proved liability for the class as a whole, using employee time records to establish individual damages. The plaintiffs did not rely on inference from average donning, doffing, and walking times, but applied this analysis to each class member individually.

Questions presented. In the petition granted June 8, 2015, the questions presented to the Court were:

    1. Whether differences among individual class members may be ignored and a class action certified under F.R.C.P. 23(b)(c), or a collective action certified under the FLSA, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample
    2. Whether a class action may be certified or maintained under F.R.C.P. 23(b)(c), or a collective action certified or maintained under the FLSA, when the class contains hundreds of members who were not injured and have no legal right to any damages.

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