The U.S. Supreme Court has affirmed a $5.8 million class action judgment against Tyson Foods in which some 4,000 employees claimed they were denied overtime pay under the Fair Labor Standards Act (FLSA) for time spent “donning and doffing” protective gear. In doing so, the Court approved the use of “representative proof” of how much time an average employee takes to put on and take off (“don and doff”) protective equipment where Tyson kept no time records on how long it actually took each employee.

The employees worked in a pork processing plant in Iowa. Their work required them to wear protective gear and Tyson compensated some, but not all, employees for time spent putting on and taking off protective gear. Tyson did not record the time each employee spent on these activities. The employees brought a class action lawsuit under the FLSA claiming they should have been paid overtime for the time spent putting on and taking off protective equipment. They relied on a study of an expert who did a videotaped study to determine on average how much time employees spent per day putting on and taking off their protective gear.

Tyson argued the case should not have been allowed to proceed as a class action because employees were not sufficiently similarly situated and each employee should have to prove his/her own individual claim rather than being allowed to rely on the expert’s study.

The Supreme Court rejected Tyson’s individualized approach and approved the class action judgment against Tyson. In doing so, the Court noted that the employees worked in the same facility, did similar work and were paid (or not paid) under the same policy. The Court also noted that the case did not present an occasion for establishing broad and categorical rules governing the use of representative statistical evidence in class action suits. Rather, the ability to use a representative sample to establish class wide liability will depend on the purpose for which the sample is being introduced and on the underlying cause of action.

The case is important for two reasons. First, it establishes that class actions in employee cases may be appropriate where the circumstances warrant a class wide approach. Second, it emphasizes the importance of paying close attention to employee pay practices to ensure you’re not running afoul of the FLSA. The $5.8 million judgment approved in this case demonstrates clearly that the failure to do so can be costly.

Article brought to you by:
Thomas R. Bagby
Principal
Labor and Employment Group