U.S. Supreme Court Grants Cert. to Review Class Judgment in Tyson Wage & Hour Case

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Tyson employees went to trial and obtained a favorable judgment on their FLSA claims, which were certified as a collective action, and on their State Law Claims, which were certified under Rule 23.  At trial, plaintiffs proved liability and damages by using individual timesheets, along with average donning, doffing, and walking times calculated from 744 employee observations.  “According to Tyson, factual differences between plaintiffs — differences in PPE and clothing between positions, the individual routines of employees, and variation in duties and management among departments — make class certification improper. Unlike Dukes, Tyson had a specific company policy — the payment of K-code time for donning, doffing, and walking — that applied to all class members. Unlike Dukes, class members worked at the same plant and used similar equipment. The time study showed that donning and doffing all equipment, plus walking, took an average of 18 minutes in the fabrication department and 21 minutes in the kill department. True, applying Tyson’s K-code policy and expert testimony to ‘generate … answers’ for individual overtime claims did require inference, but this inference is allowable….  Tyson also contends that the class should be decertified because evidence at trial showed that some class members did not work overtime and would receive no FLSA damages even if Tyson under-compensated their donning, doffing, and walking. [A]t Tyson’s request, the jury was instructed, ‘Any employee who has already received full compensation for all activities you may find to be compensable is not entitled to recover any damages.’ Tyson’s instruction directed the jury to treat plaintiffs with no damages as class members.”  Finally: “plaintiffs do not prove liability only for a sample set of class members. They prove liability for the class as a whole, using employee time records to establish individual damages. Using statistics or samples in litigation is not necessarily trial by formula.  Plaintiffs do rely on inference from average donning, doffing, and walking times, but they apply this analysis to each class member individually. Using this representative evidence is comparable to a jury applying testimony from named plaintiffs to find classwide liability.” Bouaphakeo v. Tyson Foods, 765 F.3d 791 (8th Cir. 2014), cert. granted, 135 S.Ct. 2806 (2015).

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