Supreme Court Allows Use of Sampling Evidence to Establish Hours Worked

SamplingHours.BLOGRecently, the U.S. Supreme Court ruled that employees who filed a class-action lawsuit could use representative sampling and statistical analysis to establish the number of hours they worked for unpaid overtime violations of state and federal law. Tyson Foods, Inc. v. Bouaphakeo (U.S. 2016). Without such analysis, the employees would have had difficulty establishing their unpaid hours, caused by their employer’s failure to keep adequate records.

The case involved a group of meat-processing-plant employees who claimed that Tyson failed to pay them for the time they spent putting on and removing (“donning and doffing”) their required protective equipment, in violation of an Iowa state wage-and-hour law and the Fair Labor Standards Act (FLSA).

The Court reasoned that Tyson’s failure to keep accurate records meant employees would have to rely on statistical averages to prove their hours worked if each employee brought an individual lawsuit. If statistical evidence would be allowed in a lawsuit brought by an individual employee, the Court stated, then it could be allowed in a class-action case, as well. Thus, the Court allowed statistical evidence that presumed all class members were identical to an “average” employee and spent equal time on the tasks at issue.

Tyson argued that the statistical evidence was not representative of all employees, because each worker wore different combinations of gear that required varying amounts of time to don and doff, but the Court was not persuaded. The Court found that since all of the employees in the lawsuit worked at the same plant, were subject to the same policies, and used similar equipment, statistical averages for a group of employees could represent all class members.

The Court has given employees another tool for bringing class-action lawsuits against their employers. Tyson Foods makes clear that there is no absolute rule that allows for or prohibits the use of sampling or statistical analysis to fill evidentiary gaps. Prior to this case, the Court held that statistical averages were inadmissible because they deprived defendants the right to litigate individual defenses. But the Court modified its former rule in this case, stating that statistics that could have been used in individual lawsuits are now potentially suitable for use in class-action lawsuits.

The case also stresses the importance for employers to be accurate and precise when it comes to wage-and-hour recordkeeping, and it reminds employers that the burden to keep records and prove compliance with wage-and-hour laws rests with them. The financial incentives of FLSA lawsuits are significant, and employers should take every opportunity to limit their liability. A great place to start is with thorough and accurate recordkeeping.