I’m sure many of you have now read or heard about the Supreme Court’s Tyson vs. Bouaphakeo decision on Tuesday upholding a Court of Appeals decision in the Eighth Circuit, which sides with Tyson workers at an Iowa pork-processing plant.
The employees’ main grievance was that they did not receive mandated overtime pay for time spent “donning and doffing” protective equipment.
In its attempt to reverse the judgment, lawyers representing Tyson took aim at the case’s class-action status, making two arguments. First, they argued the class should not have been certified because the method used to prove injury assumed each employee spent the same time donning and doffing protective gear. Second, they argued that certification was improper because the damages awarded to the class could be distributed to individuals who did not work any uncompensated overtime.
In delivering the majority opinion (6-2), however, Justice Anthony Kennedy wrote that …
“A representative or statistical sample, like all evidence, is a means to establish or defend against liability. Its permissibility turns not on the form a proceeding takes—be it a class or individual action—but on the degree to which the evidence is reliable in proving or disproving the elements of the relevant cause of action.”
In this instance, Kennedy said, the court’s holding is in accord with the 2011 Wal-Mart v. Dukes decision, which supported the blocking of a class-action against the retailer.
Yesterday, I asked Patrick Bannon, a partner in the Boston office of Seyfarth Shaw LLP, to share his assessment of the Tyson decision.
It’s pretty narrow, as SCOTUS decisions go, he said, because it’s largely based on the fact that it accepted a study by an expert hired by the plaintiff as valid evidence, but it didn’t really look at the particulars of the study. “They assumed,” he said, “that it was valid because the defendant hadn’t challenged the study. In a case in which an employer challenges a study with shaky statistics and not good evidence, the outcome could have been quite different.
“If there’s a cautionary tale here for employment attorneys,” Bannon said, it’s be careful of plaintiff lawyers bearing statistics.
Asked if HR leaders should be doing anything differently in light of the decision, Bannon noted that it does raise the question as to whether employers should be tracking donning and doffing time, even if it’s time employees don’t need to be paid for. “That’s a question HR folks should at least be thinking about,” he said. “It’s not always right for every workplace to try to measure tasks that you don’t think are really work, but if it turns out that it really is work and you were wrong about it, then you start down the road that Tyson Foods was on.
“If you’re an employer with a lot of employees who are all doing a repetitive task every day—and if there’s a way to measure what they’re doing that’s not too intrusive or confusing—then I’d be thinking about it,” he said.
Other employment attorneys noted that the case took on additional importance because of its connection to the Wal-Mart ruling, in which the Court rejected the use of statistical evidence to provide a pattern of discrimination.
Seth Rafkin, a partner in the New York and San Diego offices of Cooley LLP, pointed out that …
“The key threshold at issue in the Tyson and Wal-Mart cases was whether the positions and work experiences of class members were sufficiently similar such that the statistical evidence based on [a] sample of class members could reasonably be relied on as representative of the experience of other class members. In the Wal-Mart case, the Court found that the positions and experience of class members was so diverse that the statistical evidence could not be relied on as representative of the class’ experience. In contrast, the class in the Tyson case all worked at the same facility, performed similar work and were subject to the same policy.”