UNITED STATES – In Tyson Foods v. Bouaphakeo, regarding alleged uncompensated time spent by a class of employees donning and doffing hard hats, work boots, gloves, and earplugs, the plaintiff workers supported their claim by submitting averages and other statistical analysis to show similarities between disparate class members. The statistics were achieved through 744 observations of employees conducting such off-the-clock activities to average the length of time spent. The average time was then added to each class members’ timesheet to determine who worked more than 40 hours per week, thus, entitling them to overtime pay.
Departing from the Court’s previous holdings in Wal-Mart v. Dukes (2011) and Comcast v. Behrand (2013), the Court permitted such “trial by formula” evidence even though applying the average time spent to each class member might result in recovery to some employees who had not actually worked 40 hours. The Court held the statistical averages served to “fill an evidentiary gap” created by the lack of actual time records. Consistent with Wal-Mart and Comcast, however, the Court emphasized the ability to use a representative sample to establish class-wide liability still must be considered on a case-by-case basis. The Court was concerned with the likelihood that some class members may not have suffered harm, and sent the case back to the district court to determine a successful methodology for identifying uninjured class members.
This decision underscores the trend in the United States to lower barriers against wage and hour class actions. Companies with operations in the United States should review their wage and hour practices and assess their current compliance and defensive strategies.
