The U.S. Supreme Court rejects the overwhelming majority of requests for review of lower court decisions. For some reason, the Court appears to have a soft spot for so-called “donning and doffing” cases. These cases involve questions over whether time spent by workers putting on and taking off protective clothing and equipment is compensable working time under the Fair Labor Standards Act. Although these cases affect relatively few workers, the Supreme Court has accepted review of a series of donning and doffing suits over the past decade.

Last week, the Court followed its prior pattern and agreed to review an Eighth Circuit Court of Appeals decision involving class certification of a donning and doffing case. Tyson Foods, Inc. v. Bouaphaeko is a collective action claim filed on behalf of Tyson workers, alleging that the company did not properly pay employees for time spent changing in and out of protective clothing. Tyson actually paid the employees for these activities by automatically adding estimated time spent changing to their paychecks. The plaintiffs allege that this estimate significantly understated the actual time needed for changing, and a jury awarded the class $5.8 million in damages.

On appeal, Tyson contends that the collective action should not have been certified under the Supreme Court’s Dukes standard. In that case, the Court stated that class certification depends on the plaintiffs’ ability to demonstrate a company policy applicable to the class, instead of individual circumstances applicable to each proposed class member. In this case, Tyson objects to the plaintiffs’ use of statistical models to determine average changing time. The company contends that employees in its various operations use a variety of protective clothing and equipment, and therefore, the suit does not meet the Dukes standard.

In a 2-1 decision, the Eighth Circuit agreed with the plaintiffs’ argument that the FLSA contains special rules for collective actions that allow the use of such statistical models to determine average working time. The Supreme Court’s decision will clarify whether Dukes’ class commonality principles apply to FLSA collective actions.  The case will be set for oral arguments this fall.