NELA Amicus Briefs

NELA Amicus Brief: Tyson Foods Inc. v. Bouaphakeo (U.S. Supreme Court) 

10-19-2015 06:02 PM

On September 29, 2015, NELA filed an amicus brief jointly with AARP, Interfaith Worker Justice, and the National Employment Law Project (NELP) in support of respondents in Tyson Foods Inc. v. Bouaphakeo, No. 14-1146, pending in the U.S. Supreme Court. This case concerns certification of state law class action wage and hour claims under Federal Rule of Civil Procedure 23, collective action claims under the Fair Labor Standards Act, and the use of representative evidence. The brief was drafted by NELA member Seth R. Lesser, Klafter Olsen & Lesser LLP, Rye Brook, NY.

Employees at a Tyson meat-processing facility brought Fair Labor Standards Act (FLSA) and Iowa Wage Payment Collection Law (IWPCL) claims seeking compensation for time spent walking to their worksites and donning and doffing protective equipment. Tyson did not keep records of the hours employees worked. The district court certified the FLSA claims as a collective action and the IWPCL claims as a class action under FRCP 23(b)(3), finding the FLSA and IWPCL claims substantively the same and subject to the same proof.

At trial, plaintiffs introduced average donning, doffing, and walking times calculated from 744 employee observations and applied this evidence to class members individually using individual timesheets and pay data. Plaintiffs’ expert testified that the sample was “large for this type of study” and “representative.” The jury was instructed to return an aggregate verdict on damages, and that individuals who had already received full compensation could not receive any award. Backpay was calculated separately for each class member based on his or her unique days and hours worked over 40 per week and his or her hourly rate. The jury returned a verdict of almost $2.9 million, just under $5.8 million with liquidated damages.

The U.S. Court of Appeals for the Eighth Circuit affirmed, rejecting the argument that variations among class members’ donning and doffing times defeated class certification under Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), because Tyson had a single policy that applied to all class members. Representative proof was permitted under Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), because Tyson did not record its employees’ donning, doffing, and walking time, and individual variances in time spent on these activities did not prevent common adjudication. Further, Mt. Clemens justified the use of representative proof and application of a representative analysis to each class member individually, finding that the district court did not hold an impermissible “trial by formula.”

The questions presented before the Supreme Court were:

1. Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample.

2. Whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.

The amicus brief focused on the importance of representative proof under Anderson v. Mt. Clemens Pottery, 328 U.S. 680 (1946). Anderson v. Mt. Clemens Pottery Co. has governed wage and hour litigation across the country for almost seven decades. The collective action mechanism enacted by Congress in Section 16(b) of the Fair Labor Standards Act (FLSA) (29 U.S.C. § 216(b) allows “similarly situated” employees to join together to prosecute their claims, which furthers the FLSA’s “broad remedial goal” and provides plaintiffs with “the advantage of lower individual costs to vindicate rights by the pooling of resources.” Hoffmann-La Roche, Inc., v. Sperling, 493 U.S. 165, 170-71 (1989).

Amici addressed three primary points. First, Mt. Clemens is significant for its recognition that employees often do not have the ability to prove through direct evidence that they were underpaid due to their employer’s failure to keep records of hours worked. For that reason, plaintiffs may prove their case through imperfect evidence that raises a “just and reasonable inference” of the violation.

Second, amici explained how FLSA claims have been litigated as collective actions based on representative testimony and other available evidence to prove the claims for all the employees. This approach started with Mt. Clemens itself almost 70 years ago, when the court found liability based upon the testimony of eight employees out of 300. Courts have since established procedures for handling collective action cases, including requiring a threshold finding that the employees are “similarly situated” under Section 216(b), and using discovery and case management techniques to reinforce the fairness of the process. Without the benefit of these procedural efficiencies, there would be a flood of individual wage and hour cases in district courts across the country. Experience has shown that when FLSA collective actions are decertified prior to trial, and cases are too far along to be consolidated, they proceed as separate and often duplicative trials. 

Finally, the collective action mechanism is crucial to address overwhelming and persistent wage theft that continues to plague worksites around the country. In too many low-wage workplaces (like the poultry processing plant in this case) employees work off the clock, their employers are rewarded for a failure to keep records of the hours worked, and the workers cannot proceed collectively to seek their fair pay.

The case is set for argument on Tuesday, November 10, 2015.



#FLSA #ClassandCollectiveActions #WageHour #USSupremeCourt #Amicus

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