In Tyson Foods, Inc. v. Bouaphakeo, Tyson and various amici urged the U.S. Supreme Court to adopt a broad rule against the use of representative evidence in class actions. 136 S. Ct. 1036 (2016). Tyson sought to overturn class certification and a finding of liability that was premised on a representative sampling of evidence. Based in part on the representative evidence, the jury returned a verdict of $2.9 million in unpaid wages to employees for Tyson’s failure to pay overtime under the Fair Labor Standards Act (FLSA) and Iowa wage law, not including liquidated damages determined separately.
The employees sought overtime compensation for time spent donning and doffing required protective gear for their work at an Iowa pork processing plant. The employees brought state law claims certified under Federal Rule of Civil Procedure 23 and FLSA claims certified as a “collective action.” Importantly, because Tyson had no record of each employee’s donning and doffing time, the class of 3,344 employees relied on representative sampling of the time employees spent on these activities. An industrial relations expert reviewed 744 videotaped observations and opined about the average donning and doffing time per department. This average time was then applied to calculations for each class member.