U.S. Supreme Court Allows Use of Statistical Evidence in FLSA Collective Actions

By: Shelbie J. Byers, Drewry Simmons Vornehm, LLP

On March 22, 2016, the U.S. Supreme Court handed down a 6-2 ruling allowing employees to use statistical averages as evidence of hours worked where an employer failed to keep accurate records in accordance with the FLSA.  In Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, the plaintiffs brought a state law based wage and hour class action and a Fair Labor Standards Act (“FLSA”) collective action based on Tyson’s failure to pay overtime compensation to employees for donning and doffing protective gear.  Tyson argued throughout the litigation that the class should not be certified based on representative evidence, but rather required determination on an individual basis as to whether each employee spent time donning and doffing protective gear, when added to his or her regular hours, amounted to more than 40 hours in a week.  The District Court certified the class and following a jury trial, the employees were awarded $2.9 million in compensatory damages, which was affirmed by the 8th Circuit.  The Court upheld the 8th Circuit, finding that the District Court had properly permitted representative evidence in ruling on class certification.

                The FSLA requires employers (1) to pay employees for activities that are “integral and indispensable” to their regular work and (2) to make, keep, and track the “wages, hours, and other conditions and practices of employment.”  Because Tyson did not have records of the time employees spent donning and doffing protective equipment, plaintiffs sought to introduce statistical evidence prepared by its expert as to time spend on such tasks.  The Court specifically rejected Tyson’s invitation to ban statistical evidence in class actions, noting that a “representative or statistical sample, like all evidence, is a means to establish or defend against liability.”  Statistical evidence is often used in individual claims, thus, in class cases:  “If the sample could have sustained a reasonable jury finding as to hours worked in each employee’s individual action, that sample is a permissible means of establishing the employees’ hours worked in a class action.”  Of course, had Tyson maintained accurate records of donning and doffing time, statistical evidence would not have been necessary.  Rather than punish the employees in denying them the opportunity to prove their claims, statistical evidence was proper in this case.

The Court also rejected Tyson’s argument that Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 388 (2011) precluded class certification.  The Court noted that while Wal-Mart, would preclude “trial by formula,” it was different than the case before it because the Wal-Mart plaintiffs “proposed to use representative evidence as a means of overcoming [the] absence of a common policy,” which would have had little to no role in individual lawsuits.

FLSA litigation remains a leading employment-based claim in recent years.  Employers must make sure they are tracking all hours worked, including time donning and doffing protective clothing.