The Supreme Court Allows Class Certification Based on Statistical Evidence

The Supreme Court recently decided in Tyson Foods, Inc. v. Bouaphakeo et al. to uphold the certification of a class of employees at Tyson Foods, Inc. The employees worked in a pork processing plant in Iowa. Their work required them to wear protective gear. The exact gear each worker wore on any particular day depended on the specific tasks he or she did on that day. The suit alleged that because donning and doffing of the gear was “integral and indispensable” to their hazardous work, according to the Fair Labor Standards Act of 1938, the workers should be compensated for any overtime spent donning and doffing the gear. They sued to recover unpaid overtime.

The employees had to show that they worked more than 40 hours a week to be eligible for the overtime pay, but Tyson Foods had not kept records of their time. The employees hired an industrial relations expert who videotaped a sample of about 53 employees for each donning and doffing activity, and extrapolated the average time that it took each person in the 3,344 person class to perform these activities. The jury awarded the class about $2.9 million.

The Court wrote that the acceptability of statistical evidence, such as the study based on these samples, “depends on the purpose for which the evidence is being introduced and on the elements of the underlying cause of action…. Because a representative sample may be the only feasible way to establish liability, it cannot be deemed improper merely because the claim is brought on behalf of a class.” Given that Tysons had not kept records of the employees’ time, each class member could have relied on the expert’s sample to establish liability if each had brought an individual action.

The statistical sample was allowed because respondents sought “to fill an evidentiary gap created by the employer’s failure to keep adequate records.” The Court also warned that this case does not present an opportunity to adopt “broad and categorical rules” on the use of statistical evidence in class actions. A dissenting opinion argued that whether a particular employee worked more than 40 hours a week without receiving overtime pay was “clearly individualized.” The study done by the expert showed “significant variability in how much time employees spent on donning and doffing,” and the District Court did not address whether the study was permissible common proof.

EI Vice President David D. Smith has dealt with class certification in a wide range of industries. He is a co-author of an ABA book chapter on the use of econometrics in class certification.