The Supreme Court affirmed the 2.9 million dollar jury award in Tyson v. Bouaphakeo for time workers spent donning and doffing personal protective equipment (often called PPE). To prove the amount of unpaid work, the employees relied on an expert study to calculate the average time it takes to don and doff the PPE. Relying on this analysis the employees argued that because the employer did not have complete records of the time spent donning and doffing the PPE it was appropriate to infer that the Expert’s average time should be added to the recorded time to determine the appropriate amount of unpaid work. In response Tyson, argued that because there was too much variation in the time it took each employee to don and doff the PPE classwide recovery was too speculative. The jury ultimately found in favor of the employees.
In the case before the Supreme Court there were two key considerations:
- Whether representative proof of time spent donning and doffing makes a class unmanageable under Rule 23;
- Whether the class could be maintained when some putative class members did not work any uncompensated overtime.
The opinion focuses almost exclusively on the first question and the Court relies on its previous holding in Anderson v. Mt. Clemens which supplies the procedures for handling most wage and hour overtime cases. In that landmark 1946 decision, the Supreme Court held that where an employer failed to keep records, an employee can show the amount of unpaid work “as a matter of just and reasonable inference.” The employer argued that because each putative class member must show that he worked 40 or more hours in a given week, this inherently individual inquiry trumps any common analysis that could be applied using the representative sample.
The majority opinion argued that in many cases a representative sample is the only way to establish a defendant’s liability. Moreover, because this representative sample could be used in an individual case to establish the amount of time spent donning and doffing PPE it follows that it could also be used in a class wide case.
In this suit, as in Mt. Clemens, respondents sought to introduce a representative sample to fill an evidentiary gap created by the employer’s failure to keep adequate records. If the employees had proceeded with 3,344 individual lawsuits, each employee likely would have had to introduce [the Expert’s] study to prove the hours he or she worked. Rather than absolving the employees from proving individual injury, the representative evidence here was a permissible means of making that very showing
Hence, the representative proof of time worked, but not paid, could be used to meet the just and reasonable inference standard in Mt. Clemons and because any one individual could rely on it, it could be applied to the class.
The Court punted the second issue to the lower court. The employer argued that where there is no proof that all class members suffered an injury, the employees must provide a sufficiently reliable mechanism to ensure those members that have not suffered an injury were not awarded any damages and do not recover any damages. This issue became relevant because the jury did not award all the damages sought by the Plaintiffs and therefore, the proof offered by the Plaintiffs to calculate the amount of time worked to show that each putative class member had worked at least 40 hours was flawed. The Court concluded that there wasn’t enough information on the record to determine whether the allocation was sufficient and left that decision to the lower court to resolve.
In a concurring opinion, Justice Roberts fleshed out this issue more thoroughly and argued that because the jury verdict was entered as a dollar figure (and not in terms of minutes worked), it would be difficult to extrapolate how much unpaid time was awarded by the jury. Because the amount of unpaid time was not clear, the Plaintiffs may not be able to sufficiently show which class members worked more than 40 hours in a workweek (which is required to recover under the Federal wage and hour laws). In that circumstance, Justice Roberts concluded the jury award could not stand.
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