Justices Will Review Class Certification In Donning - Doffing Case Against Tyson Foods

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By Lisa Nagele-Piazza

June 8 — Granting a petition filed by Tyson Foods Inc., the U.S. Supreme Court June 8 agreed to review a federal appeals court decision upholding the class certification of over 3,000 Iowa meat-processing workers on their wage and hour claims that resulted in a nearly $5.8 million jury award (Tyson Foods, Inc. v. Bouaphakeo, U.S., No. 14-1146, cert. granted 6/8/15).

The justices will review a 2-1 decision of the U.S. Court of Appeals for the Eighth Circuit, which held that a district court didn't abuse its discretion by certifying the workers' collective and class actions under the Fair Labor Standards Act and the Iowa Wage Payment and Collection Law. The employees claimed that the time Tyson automatically added to paychecks for donning, doffing and required walking wasn't sufficient to cover pre- and post-production line activities.

In its petition for review, Tyson argued that the appeals court erred by affirming collective and class certification where liability and damages were “determined with statistical techniques that presume all class members are identical to the average observed in a sample.” Differences between the employees' routines made class certification based on the existence of common questions improper, Tyson argued.

Certification was also improper because the class contained hundreds of members who were not injured, the company asserted, and an award of damages to uninjured workers isn't authorized “simply because their claims are aggregated with others who were harmed.”

In their brief opposing review, the workers contended that the use of representative proof is permissible in wage and hour claims when the employer failed to keep records, even if there are individual variances. Furthermore, the plaintiffs usedindividual time records to apply the representative analysis to individual class members, the workers noted.

Workers Claim Donning and Doffing Pay Insufficient.

According to the case record, the plaintiffs worked as hourly production employees at Tyson's pork-processing facility in Storm Lake, Iowa. The workers were paid a “gang time” rate for time they spent at their workstations when the production line was moving.

Although Tyson didn't record the actual time employees spent donning and doffing protective equipment and walking to and from the production floor, it added about four minutes per shift to employees' paychecks for these activities, which it called “K-code” time.

The workers filed a lawsuit in 2007 claiming that Tyson’s K-code time was insufficient to cover pre- and post-production line activities. The district court certified an FLSA collective action, as well as a state law class action under Rule 23 of the Federal Rules of Civil Procedure.

According to the appeals court, the workers relied on individual time sheets, along with average donning, doffing and walking times calculated from 744 employee observations to prove liability and damages.

The time study showed it took an average of 18-21 minutes for employees to perform K-code functions, depending on their department.

Following a nine-day trial, the jury returned a verdict awarding almost $5.8 million in compensatory and liquidated damages to the class.