In a decision earlier this year, the Supreme Court issued a ruling that employees proceeding together as a putative class, or as a collective for claims under the Federal Fair Labor Standards Act (“FLSA”), can demonstrate commonality through statistical evidence that is not particular to the plaintiffs and events at issue. The decision in the case, Tyson Foods, Inc. v. Bouaphakeo et al., 765 F.3d 791 (2016) dealt with Tyson employees who stated that their employer failed to compensate them for time putting on and taking off protective gear required for that work. They claimed that this uncompensated time caused them to lose overtime benefits to which they otherwise would have been entitled.
As part of their efforts to oppose certification of the class, Tyson had argued that individual issues pertaining to the amount of time each employee spend donning and doffing the work gear predominated over the common questions of law and fact. The employees did not have access to proof of the time required for each employee to put on and take off the gear each and every day. Instead, the employees hired an expert to conduct a study of the average time required for the average employee to conduct the donning and doffing. The employees argued that the average could then be applied each employee to determine whether the employer owed overtime in a pay period.
The decision found that representative sampling is a permissible form of evidence to demonstrate liability for purposes of the FLSA, including when applied to a class. The expert’s sampling was permissible in this case specifically because the employer failed to keep adequate records that would have otherwise enabled the employees to prove their claims by more direct evidence. Had each employee proceeded with an individual lawsuit, they would have had to introduce the expert’s study to prove the hours worked. The representative sampling was a permissible means of showing individual hours worked. The representative sampling therefore applied more broadly to the whole class where the employees were similarly situated.
The Court declined to issue any broader, categorical standards to clarify when representative and statistical evidence is appropriate in class actions. The decision also did not specify how any award should be disbursed to the claimants, leaving open the question of whether the representative sampling approximates individual damages closely enough so as not to award damages to class members who were not actually injured. However, the decision should help make such evidence more in the norm for various areas of practice where classes are common.
So it’s important to remember, even if you do not have specific proof of the time it takes for you and your coworkers to get ready for work or break down after, there may be other ways to determine whether you have a claim for unpaid wages. And, perhaps more importantly, keep in mind that you may not have to stand alone to bring such a claim.
 Available at https://www.law.cornell.edu/supremecourt/text/14-1146
 As of the date of this article, Tyson has requested a new trial on this very issue. See https://www.lawyersandsettlements.com/articles/unpaid-wages/unpaid-wages-lawsuit-claim-41-21622.html?opt=b&utm_expid=3607522-13.Y4u1ixZNSt6o8v_5N8VGVA.1&utm_referrer=https%3A%2F%2Fwww.bing.com%2F