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Supreme Court Allows Class Action to Proceed Based on “Representative” Proof

AARP helped persuade the U.S. Supreme Court to approve a $2.9M damages award for unpaid wages by a class of food processing workers based on testimony about a “representative” sample of the workers.  The Court reaffirmed that this approach is permissible in appropriate circumstances — for instance, where, as here, an employer failed to keep accurate records of time worked by individual employees, so “representative” proof was the best evidence employees had available.


Peg Bouaphakeo and co-workers in the “kill, cut and retrim departments” of Tyson’s Storm Lake, Iowa pork processing plant sued the company in 2007. They charged Tyson with failing to pay them for time spent “donning and doffing” protective gear needed to safely perform their duties (i.e., to avoid injury due to knife cuts) and, thus, failure to abide by the overtime pay provisions of the Fair Labor Standards Act of 1938 (FLSA) and the Iowa Wage Payment Collection Law (IWPCL).  Between 1998 and 2007, Tyson’s paid all workers like Bouaphakeo for time spent putting on and taking off their protective gear, but in 2007 eliminated such pay for many of them.  Both before and after 2007, Tyson’s failed to keep track of such time.

A federal court approved Bouaphakeo’s proposals to prosecute a “collective action” on behalf of herself and several hundred “similarly situated” co-workers under the FLSA and a “class action” on behalf of herself and several thousand co-workers under the IWPCL.  In a collective action, in order to be part of the case, each individual plaintiff must “opt in” to the lawsuit; in a class action, all persons affected by the challenged misconduct are automatically members of the class unless they specifically “opt out” to bring a case on their own.  In some respects, the rules applicable to collective action are different from those for class actions; in this instance, the Supreme Court reached a resolution applicable to both kinds of cases.

The Bouaphakeo case went to trial, and Tyson’s workers confronted a serious challenge to prove their case.  Without any recorded data regarding time spent “donning and doffing” protective gear, Tyson’s employees had no way to show how much unpaid working time they had each been denied and thus, the extent of the damages they should receive, without presenting testimony from every single worker affected.   Instead, they presented testimony by an expert witness who observed the donning and doffing activities of 744 workers allegedly constituting a “representative sample” of all affected workers.  Extrapolating from the experience of the workers in the sample, the expert determined the amount of time spent donning and doffing protective gear by all the members of the class and the unpaid wages this would represent.  This produced a total amount of $2.9 million.

Tyson’s complained that the actual experience of affected workers varied considerably, and that some of those workers had not worked any time in excess of 40 hours per week, and thus, under the FLSA, they were unentitled to additional pay for overtime. Moreover, Tyson’s argued, these differences between members of the class precluded their proceeding as a class.

The Supreme Court voted 6-2 to affirm a ruling by the U.S. Court of Appeals for the Eighth Circuit upholding the “certification” of a class action and a collective action in the case and also the damages award for the Tyson’s workers.  

The Court majority acknowledged that in some instances, reliance on statistical evidence of damages to a class would be inappropriate and that differences between the facts applicable to class members of a proposed class would render a class action improper. But the Court rejected “[a] categorical exclusion” of the use of statistical evidence of harm of the sort proposed by Tyson’s, saying that “would make little sense” because “[a] representative or statistical sample, like all evidence, is [simply] a means to establish or defend against liability [whose] permissibility turns not on the form a proceeding takes — be it a class or individual action — but on the degree to which the evidence is reliable in proving or disproving the elements of the relevant cause of action.” Here the Court declared, where an employer had failed to keep records of individual time worked,  evidence based on “a representative sample” of those affected was "the only practicable means to collect and present relevant data" establishing the defendant's liability.

The Supreme Court followed the reasoning urged by AARP in its friend-of-the-court brief filed by AARP Foundation Litigation attorneys. AARP joined several workers’ rights groups in filing this brief: The National Employment Law Project; the National Employment Lawyers Association; and Interfaith Worker Justice.

What’s at Stake

This decision reaffirmed a flexible approach permitting use of “representative proof”, where no other approach is feasible, in class and collective actions. Such actions are the most common means of bringing claims to vindicate the rights of groups of older individuals in many areas of the law, including virtually all those in which AARP engages in legal advocacy, such as employment discrimination, employee benefits, consumer affairs, housing, transportation and health affairs. The Court rejected a more rigid approach that would have limited opportunities for groups of older individuals to prove broad-based injuries in all of these areas.  In addition, since the FLSA closely parallels the Age Discrimination in Employment Act in its provisions permitting “collective actions” on behalf of groups of “similarly situated” workers. Thus, the Bouaphakeo decision is especially favorable to the continued vitality of group actions challenging age discrimination, such as AARP Foundation Litigation brings on behalf of older workers.   

Case Status

Tysons Foods, Inc. v. Bouaphakeo was decided by the U.S. Supreme Court.