In a 6-2 decision, the Supreme Court ruled that a class action lawsuit workers brought against Tyson Foods, in which statistical methods helped determine liability and damages, was valid. At question was also whether a class action could exist in which some of the members might not have experienced a loss.

Employers were hoping to get some clear guidance from the court on these issues. Guidance they got. Whether they will like it is another question.

Employees at a Tyson pork-processing plant in Iowa originally brought suit, arguing that they weren't paid for all the time it took to get into and out of mandatory equipment and gear for their jobs. The company said that it already paid for four minutes of time and that should be sufficient.

About 3,000 employees were included in a class action suit and ultimately won a $6 million verdict. Tyson first appealed, lost, and then appealed again to the Supreme Court, ultimately losing.

Statistics took center stage because of record-keeping problems. According to the court records, Tyson did not compensate all employees for donning and doffing gear and it failed to keep records showing how much time the employees spent doing so.

Under the Fair Labor Standards Act of 1938 (FLSA), the employees had to show that they worked more than 40 hours a week with the time to put on and remove the special gear. Without the records, the employees relied on a study performed by an industrial relations expert. The averages ran from 18 to 21.25 minutes a day, depending on the specific department.

Tyson argued that because of the variations, the claims were not similar enough to be determined on a class basis.

Patrick Bannon, a partner with management-side labor law firm Seyfarth Shaw, told me at the time of the oral arguments that there were four likely outcomes:

  • The Supreme Court could decertify the class, turning the entire issue into a suit by a handful of employees.
  • The justices could send the case back to the original district court to figure out more clearly who gets additional money and why.
  • The court could affirm the original verdict and judgment.
  • The court could rule that either side could have pressed for more specific instructions to the jury to avoid a vague results and, as they didn't, things will stand because they declined to use a procedural opportunity.

Bannon said, "We would love to have some guidance from the Supreme Court on whether a class action can proceed in a situation like this."

Because Tyson didn't keep track of the time, for whatever reason, the company undercut its own argument. There was no way to determine whether individual employees met the overtime standard.

On the question of whether a class can exist when it includes people who have not been injured, the majority opinion said that such a question was premature, as money had not been dispersed, and that the action of splitting the liability and damages phases of the suit, which essentially caused the problem, was something Tyson, not the workers, wanted.