The Supreme Court this week affirmed a class action based upon statistical evidence in a suit against Tyson Foods for violations of the Fair Labor Standards Act (“FLSA”) based upon expert testimony of statistical evidence in Tyson Foods v. Bouaphakeo. The class action suit claimed that workers were not paid for time spent donning and doffing protective gear before and after shifts. The District Court certified the class and the case went to the jury, who returned a verdict of $2.9M in compensatory damages. Tyson appealed claiming the class certification was improper and the Eighth Circuit affirmed.
Tyson’s argument was two-fold: First, it argued the class definition assumed each employee spent the same time donning and doffing protective gear, even though, in fact, employees took different amounts of time to don and doff. Second, it argued that damages to the class might be distributed to individuals who did not work any uncompensated overtime.
The Supreme Court held that the permissibility of a statistical or representative sample turns on the reliability of the evidence in proving the underlying evidence in the cause of action, but did not establish a general rule for the use of statistical evidence in the certification of a class. In a case where statistical or representative evidence is to be used by a Plaintiff to prove his or her individual claim, it cannot be deemed improper merely because the claim is brought on behalf of a class.