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'Donning and doffing' ruling in Tyson Foods case could spark litigation trend

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Last week's U.S. Supreme Court ruling against Tyson Foods Inc., which favors workers by holding that statistical evidence can be used to determine overtime wages to be paid in a “donning and doffing” class action, could lead to an uptick in litigation, says one expert.

The issue in the high court's 6-2 ruling in Tyson Foods Inc. v. Bouaphakeo et al. was whether workers should be paid for the overtime spent putting on and taking off their work clothes.

The 3,344 workers in the case were employees of the kill, cut and retrim departments in the Storm Lake, Iowa, pork processing plant operated by Springdale, Arkansas-based Tyson.

The workers filed suit in U.S. District Court in Sioux City, Iowa, in 2007 charging violation of the Fair Labor Standards Act and the Iowa Wage Payment Collection Law. The District Court certified the litigation as a class action in 2008.

Evidence submitted at the trial included a study performed by an industrial relations expert, Kenneth Mericle, who on the basis of conducting 744 videotaped observations, concluded it took an estimated 18 minutes a day for the cut and retrim departments, and 21.25 minutes for the kill department, to don and doff their work clothes. A jury awarded the workers $2.9 million in benefits in September 2011.

The case was appealed to the 8th U.S. Circuit Court of Appeals in St. Louis, which upheld the lower court ruling in August 2014.

In ruling in the workers' favor, the Supreme Court's majority ruling said because of the employer's failure to keep proper records, “the representative evidence here was a permissible means” of showing the hours that had been worked.

The ruling cautioned, however, that the “fairness and utility of statistical methods in context other than those presented here will depend on facts and circumstances particular to those cases.”

A second question before the court was whether a class could be certified if it included members who were not injured and did not have legal right to any damages, referring to workers who did not work overtime. The court said identifying uninjured class members at this point in the litigation is “premature.”

The dissenting opinion by Associate Justice Clarence Thomas, who was joined by Associate Justice Samuel Alito, said the majority had redefined class action requirements and devised an “unsound special evidentiary rule for cases” under the FLSA.

Commenting on the ruling, Christopher R. Kazanowski, a partner with Honigman, Miller, Schwartz & Cohn L.L.P. in Detroit, said while it is good to see the court giving some direction to both plaintiffs and employers on the admissibility of statistical evidence, “we are going to see an uptick in litigation here” because plaintiffs will be able to use statistical evidence to sustain class proceedings.

The case could also affect class actions beyond wage-and-hour claims, Mr. Kazanowski said, “because the court used pretty broad language to say they will not permit a categorical rejection of all statistical evidence.”

However, Kevin M. McGinty, a member of law firm Mintz, Levin, Cohn, Ferris, Glovsky & Popeo P.C. in Boston, said the court's reasoning in the case is “fairly narrow” and also leaves undecided the significant question as to when it is appropriate to include uninjured class members with a certified class.