Tyson Foods v. Bouaphakeo presents a classic legal dilemma:  two lines of cases, one older and one newer, neither exactly on point.  Which will the Court pick or will it craft a new test? 

More pragmatically, local governments should be interested in this case because it involves the Fair Labor Standards Act (FLSA). Given the difficulties of complying with this complex law, no employer is immune from the possibility of FLSA litigation.

One of two questions the Supreme Court will decide in Tyson Foods v. Bouaphakeo is whether a representative sample may be used calculate liability and damages for an entire class of workers. The other question is whether a class may include hundreds of members who weren’t affected.

Meat-processing employees brought a collective (class) action under the FLSA claiming that Tyson failed to pay them overtime for donning and doffing personal protective equipment and walking to and from their workstations.

The employees did time studies calculating the average donning, doffing, and walking time for employees working in the kill and fabrication departments. Tyson claims this method of calculating liability and damages “presume[s] that all class members are identical to a fictional ‘average’ employee” and amounts to “Trial by Formula,” which the Supreme Court disavowed in the landmark class action case Wal-Mart Stores v. Dukes (2011).  

The employees argued, and the Eighth Circuit agreed, that Anderson v. Mt. Clemens Pottery (1946) applies to this case. In Mt. Clemens the testimony of eight employees established the liability for 300 similarly situated workers. The employees in this case distinguish Dukes, where the lower court determined the number of employees deemed to have valid sex discrimination by looking at a sample of employees, arguing: “This case concerns a wholly different type of claim: a claim for unpaid overtime, which depends on common proof as to the employer’s compensation policies and an objective determination of the amount of time worked.”

As to Tyson’s claim that the class should have been decertified because it contained members who did not work overtime, the Eighth Circuit noted that Tyson “invited error” by requesting a jury instruction that the jury not compensate anyone not entitled to recovery.

Mayer Brown’s Class Action Defense blog notes this is one of four case in which the Court has been asked to “resolve whether a class may be certified by use of statistics when there are individualized differences among class members and when many class members have not been injured.” The Court has not yet decided whether to grant the other petitions.

This case will apply to class actions outside of the context of the FLSA as well.