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.