There's been a dispute going on between meat producer Tyson Foods and employees at a plant in Iowa. The employees said that they weren't being paid for all the time it took to get into and out of mandatory equipment and gear for their jobs. Tyson said it covered four minutes of time and that should be enough.

Things ended up in a class action suit as about 3,000 employees lined up on one side, Tyson on the other. The employees won a $6 million judgment at the district court and won again at the appellate court level. The company appealed to the Supreme Court, which heard oral arguments on Tuesday in the case called Tyson Foods v. Bouaphakeo.

Tyson reportedly had asked the court to decide two things: whether a statistical method could determine average compensation and if there could be a class action when some of the members might not have experienced a loss.

Some reports suggest that a majority of the court seemed to be siding with the employees.

But according to a labor/employment lawyer I spoke with who attended the oral arguments, the entire situation is highly complicated and the justices seemed to be scratching their heads over the whole thing.

For example, the lawyers for the employees had one expert witness document the time it took to don and doff the gear and another estimate how much additional pay that should mean. The jury didn't give them the full amount, but didn't explain how it discounted the total.

"Justice Alito and Sotomayor asked, 'How do we know what the jury meant by saying we're going to give you a percentage of what the evidence showed?'" said Patrick Bannon, a partner with Seyfarth Shaw. That's two different ideological wings of the court wondering the same thing.

It's also not whether a class's inclusion of people who had not faced harm could or should be enough to derail a class action. There have been cases, particularly with retailers, where everyone who had done business with them in a given timeframe was contacted but only those who had made certain purchases were eligible for compensation. Does that mean the class didn't include all the people? Or was it that only some people in the class could claim a loss?

"The Supreme Court justices were trying to figure out what kind of a case this is," Bannon said. "Is it a case about what it takes to make a class action or is it a case about how much statistical evidence is permissible? I think the judges were grappling with that."

As the discussion with Bannon suggested, there are at least four different ways this could end up:

  • 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 missed declined to use a procedural opportunity.

"We would love to have some guidance from the Supreme Court on whether a class action can proceed in a situation like this," Bannon said. "Before the argument, I hoped that was going to happen and thought was likely to happen. After the argument, I'm not sure."