Labor and Employment Law, 0816 COBJ, Vol. 45, No. 8 Pg. 43

• Author: John Husband, J.

45 Colo.Law 43

Labor and Employment Law

Vol. 45, No. 8 [Page 43]

The Colorado Lawyer

August, 2016

Class Actions for Overtime Pay May Rely on Sample Data of Donning and Doffing Time.

John Husband, J.

Class Actions for Overtime Pay May Rely on Sample Data of Donning and Doffing Time

In Tyson Foods, Inc. v. Bouaphakeo, the Supreme Court upheld class certification-and a $2.9 million jury verdict—where workers relied on representative data of the time spent donning and doffing protective gear to establish their claim for unpaid overtime pay. The opinion provides valuable lessons on when statistical evidence is permitted to establish class action liability and how such evidence may be attacked.

In the absence of actual time records, time spent by employees donning and doffing protective gear may be proved by representative evidence to establish the employer’s liability for un paid overtime pay in a class action lawsuit, according to the U.S. Supreme Court’s recent ruling in Tyson Foods, Inc. v. Bouaphakeo.¹ Despite the company’s argument that each employee’s wage claim varied too much to be resolved on a classwide basis, the Court up held the class certification and sent the case back to the district court to determine how to distribute the $2.9 million jury award to class members.^[2]

Pay for Donning and Doffing Protective Gear

Under the Fair Labor Standards Act (FLSA), it is well established that employers must pay employees for time spent performing preliminary or postliminary activities that are “integral and indispensable” to their regular work.³In Tyson Foods, over 3, 300 pork processing employees sued, alleging that the company failed to pay them for time spent putting on and taking off required protective gear at the start and end of their work shifts and at meal periods.⁴ The type of protective gear worn by each worker depended on the job being performed on any given day.⁵ The employees argued that such time was “integral and indispensable” to their work, and when added to their weekly work hours, pushed them beyond 40 work hours per week, resulting in unpaid overtime.⁶

The workers sought certification of their FLSA claims as a collective action as well as certification of their wage claims under the Iowa Wage Payment Collection Law as a class action under Rule 23 of the Federal Rules of Civil Procedure.⁷ Tyson objected to the certification of both classes. The case was tried to a jury on both liability and damages. Although the jury failed to award the full $6.7 million requested, it awarded $2.9 million in unpaid wages to the class.⁸

Tyson moved to set aside the jury verdict on grounds that the class should not have been certified, in large part because of the variation in the donning and doffing time among the workers.⁹ The district court denied Tyson’s motion, and the Eighth Circuit Court of Appeals affirmed.¹⁰ The Supreme Court agreed to hear the case to decide whether representative data could be used to prove the amount of time spent donning and doffing protective gear, even though differences in the gear worn by employees resulted in different amounts of time spent donning and doffing.¹¹

Representative Data Fills an “Evidentiary Gap”

Tyson Foods did not keep records of the time spent by employees for donning and doffing required protective gear. To establish their claim for overtime pay, the employees presented representative evidence of the time spent on those activities, including employee testimony, video recordings of the donning and doffing process at the plant, and a study by an industrial relations expert, Dr. Mericle.^[12] Dr. Mericle analyzed 744 videotaped observations to determine how long various donning and doffing activities took, concluding that employees in the kill department took an estimated 21.25 minutes per day, while workers in the cut and retrim departments took an estimated 18 minutes per day.¹³ Using that data, another expert added that time to each employee’s recorded work time to determine how many hours each employee worked per week.¹⁴

Tyson Foods argued that because the workers did not all wear the same protective gear, whether and to what extent it owed overtime pay to each individual...