Skip to Main Content

Keeping you informed

Supreme Court Says Averages May be Used to Establish Classwide Liability

    Client Alerts
  • March 28, 2016

In its 2011 Dukes decision, the U.S. Supreme Court limited the circumstances under which groups of employees can maintain class action claims relating to their employment. In that case, the Court concluded that Wal-Mart managers who worked at different stores under different management, and subject to different regional policies, did not have sufficient commonality to bring class action discrimination claims. On Tuesday, the Supreme Court limited the scope of Dukes, concluding that once plaintiffs demonstrate commonality, they can bring class action claims based upon statistical estimates of individual damages suffered.

In Tyson Foods, Inc. v. Bouaphaeko, the plaintiffs were workers at a pork processing facility who claimed that they were not paid for time spent changing in and out of protective clothing. This case is the latest in a string of Court decisions dealing with “donning and doffing” rules under the Fair Labor Standards Act. Tyson did not maintain records of time spent by employees changing. The plaintiffs submitted expert testimony based on video observations of employees changing in and out of the clothing, along with employee interviews, to establish average changing times.

The employer sought to decertify the collective action, claiming that the proposed members lacked the commonality required under Dukes. Tyson noted that the employees had different jobs and used different protective equipment, making each position’s time spent changing different.

The Supreme Court disagreed, upholding collective action certification by a 6-2 vote. The Court noted that unlike Dukes, the employees here all worked at the same facility, under the same managers and workplace policies. Once these common factors are established, the plaintiffs may use a reasonable, reliable representative sampling of time spent changing in order to establish classwide liability. Absent accurate records maintained by the employer, such as statistical analysis, serves as the only way the plaintiffs could establish such liability. The Court did not establish a rule for when statistical information can be used to estimate damages, but left this question to trial courts to determine based on the reliability and relevance of the evidence submitted.

This decision tempers any belief that Dukes spelled the end of large class and collective action employment lawsuits. The Supreme Court refused to define the commonality elements required by Dukes in a manner that would essentially require that such claims contain identical allegations in order to allow class certification. While Dukes certainly restricts plaintiffs’ ability to obtain class certification across multiple operations, their inability to demonstrate the exact harm suffered by each proposed class member will not serve as grounds for rejecting certification.