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Strength in Numbers: Class Actions to Collect Unpaid Wages

Strength in Numbers: Class Actions to Collect Unpaid Wages

For near 80 years, working people have had the important right to bring a class action to recover their unpaid wages from employers who have not properly paid them Recent developments in the law have strongly reaffirmed that right.

U.S. Supreme Court Strongly Reaffirms Class Action Rights

In March of 2016, the Supreme Court decided the case of Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036 (2016). The plaintiffs in Bouaphakeo worked in the kill, cut, and retrim department of a Tyson Foods pork processing plant in Iowa. That sort of work is dangerous and requires protective gear. That protective gear takes time to put on at the beginning of the shift, and take off at the end of a shift; and, for some reason, starting in 2007, Tyson did not pay all of its kill, cut, and retrim workers for time it takes to don and doff that equipment. Importantly, Tyson violated an important legal obligation to maintain records of the time it took to don and doff the equipment. The plaintiffs sued Tyson under the Fair Labor Standards Act (FLSA) and Iowa state law for unpaid compensation for the time it takes to don and doff the protective gear.

As in many such FLSA cases, the plaintiffs asked the trial court to certify a class of all of the kill, cut, and retrim workers. The court certified a class of over 3,000 individuals, and the case proceeded to trial. Because there were so many of them, and because Tyson had no records of the amount of time spent donning and doffing, the plaintiffs had to rely on "representative evidence" of the amount of time they spent donning and doffing the equipment. That evidence consisted of so-called time studies (meaning, how much time it takes to perform a particular task), and testimony from an expert witness regarding the average amounts of time it took to don and doff the equipment. Based on this "representative evidence," the jury returned a $2.9 million verdict against Tyson Foods.

Tyson appealed, and the case eventually made its way to the Supreme Court. One of Tyson's primary contentions on appeal was that the representative proof was not sufficient because there were variations in donning and doffing time among Tyson's workers. From there, Tyson argued that the individualized questions of the amount of time each worker spend donning and doffing rendered class treatment improper. In other words, it was saying that the jury could not have inferred the amount of time 3,000 workers took to don and doff protective equipment based on the representative evidence the plaintiffs were forced to us.

When the Court agreed to hear the case, many wage and hour practitioners believed that it intended significantly to restrict the rights of workers to file collective action lawsuits to recover their unpaid overtime wages. That is because in 2011, the Court had decided a case called Wal-Mart v. Dukes. In that case, the Court held that a company-wide class of female workers asserting gender discrimination claims should not have been certified because they attempted to use representative evidence as a substitute for evidence of a common policy of gender discrimination, which is something they lacked. Many believed that the Court was poised to expand Dukes to apply to unpaid overtime cases.

In fact, however, the Supreme Court held in Bouaphakeo that plaintiffs in collective actions may utilize "representative evidence" in proving claims of unpaid overtime for a class of workers. In so holding, it rejected Tyson's reliance on Dukes, and relied instead on the seminal 1946 case of Anderson v. Mt. Clemens Pottery. In Mt. Clemens, the Court had held that, when an employer (like Tyson here) fails to maintain time records (and the employees cannot, therefore, prove with certainty how much uncompensated time they have worked), the solution is to allow the employee to prove uncompensated time as a matter of "just and reasonable inference." Once the employee does so, the burden shifts to the employer to either prove the precise amount of time worked, or negate the reasonableness of the employee's inference.

Central to the Court's ruling is its observation that "[o]ne way for [the plaintiffs] to show . . . that the [representative proof] relied upon here is a permissible method of proving classwide liability is by showing that each class member could have relied on [it] to establish liability if he or she had brought an individual action. If the sample could have sustained a reasonable jury finding as to hours worked in each employee's individual action, that sample is a permissible means of establishing the employees' hours worked in a class action." 136 S.Ct. at 1046-47.

In other words, if the representative proof would work for one, it will work for all.

From this general observation, the Court held as follows: "In this suit, as in Mt. Clemens, [the plaintiffs] sought to introduce a representative sample to fill an evidentiary gap created by the employer's failure to keep adequate records. If the employees had proceeded with 3,344 individual lawsuits, each employee likely would have had to introduce [the expert witness]'s study to prove the hours he or she worked. Rather than absolving the employees from proving individual injury, the representative evidence here was a permissible means of making that very showing." Id., 1047.


Thus, the Court did not, as many had feared, expand Dukes to apply to wage and hour class and collective actions. This means that workers may still band together to wield their strength in numbers to collect their unpaid wages. If you believe your employer has not paid you everything you are owed, you may have the right to use this powerful legal tool. Call our office for a free case evaluation at 512-782-2293 or contact us online.

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