Can a plaintiff support a collective lawsuit if some of the individuals in the purported class have not suffered any harm? The Supreme Court took up this question during yesterday’s oral argument in Tyson Foods v. Bouaphakeo, a case that will go a long way to deciding the continued viability of class or collective actions to decide wage and hour lawsuits.
The underlying legal issue is a familiar one: donning and doffing (that is, compensation for time spent putting on, and taking off, protective gear). This case also carries forward themes from 2011’s Wal-Mart Stores v. Dukes decision (which opined on the non-viability of a nationwide class action in which the class members lacked common harm), and last week’s Spokeo v. Robins oral argument (which will decide if a plaintiff has standing to bring a lawsuit for a technical violation of the Fair Credit Reporting Act if the individual suffered no resulting concrete harm).
So, what is Bouaphakeo all about?
A class of 3,344 production-line employees won a 5.8 million verdict for unpaid time spent donning, doffing, washing up, and walking to and from their work stations. Tyson only paid the employees for the time they spent actually processing hogs on the production line.
In seeking to overturn the verdict, Tyson raised the following two issues with the Supreme Court:
- Whether differences among individual class members may be ignored and a class action or FLSA collective action certified where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample.
- Whether a class action or FLSA collective action may be certified or maintained when the class contains hundreds of members who were not injured and have no legal right to any damages.
While class actions have taken a Supreme-Court beating over the past several years, Tyson appeared to take the harder hits at oral argument. Justice Kennedy, usually the swing vote in close cases, questioned Tyson’s attorney, “I just don’t understand your arguments.” While the conservative wing of the Court seemed to favor the employer, if Tyson loses Kennedy’s vote, it will have a difficult time garnering the necessary five votes to overturn the verdict.
This case is definitely one to watch. This opinion, along with last week’s Spokeo argument, will go a long way towards shaping the future of class action litigation for employers.