Supreme Court Allows Workers to Use Averages in Overtime Claim

Mar 22 2016 - Compensation, Overtime - HRWatchdog

PuttingOnGearToday, the United States Supreme Court allowed a $5.8 million verdict for unpaid overtime against Tyson Foods to stand. Because the company didn’t keep complete and adequate time and pay records, the Court permitted Tyson workers to use an expert’s averaging and statistics to show they didn’t get paid the right amount. The case is Tyson Foods Inc. v. Bouaphakeo et al., No.  14-1146.

The underlying case involved claims for unpaid off-the-clock time. Workers in a pork processing plant in Iowa claimed that time spent “donning and doffing” (changing into required protective clothes/gear), washing up and walking to and from their work stations lengthened their workweek and entitled them to overtime pay. Tyson compensated some, but not all, employees for donning and doffing time. Yet, it did not record the time spent by each employee on these activities.

The class action lawsuit involved 3,334 workers.

Tyson argued that the workers should not have been allowed to sue as a class because the types of protective gear worn by each employee varied depending on job duties and, thus, the amount of time spent putting on and taking off the gear also varied. Tyson claimed there were too many differences between the workers to allow them to be tied together in a class.

Unfortunately for Tyson, it did not keep accurate records of the donning and doffing time. This allowed the employees to bring in an expert who used sampling to determine an average amount of time spent putting on and taking off gear.

The expert conducted videotaped observations analyzing how long various donning and doffing activities took. The expert then averaged the time to come up with an estimate of 18 minutes a day for the cut and retrim departments and 21.25 minutes for the kill department.

These estimates were added to each employee’s timesheet to determine which class members worked more than 40 hours a week and the value of classwide recovery.

Tyson argued that it was improper to rely on the expert’s sampling because of the varying amounts of time it took employees to don and doff different protective gear. Tyson also argued that use of the sample would lead to recovery for individuals who, in fact, had not worked the requisite 40 hours. Tyson claimed that using the statistical sampling to tie the class of individuals together violates the Court’s earlier decision in Wal-Mart Stores v. Dukes regarding class action lawsuits in employment discrimination claims.

In a 6-2 decision, the U.S. Supreme Court disagreed with Tyson. The Court noted that since the employer violated its duty to keep proper records, the employees were allowed to introduce the expert’s sample to fill the “gap” in evidence. Because there was no alternative means available for employees to show their hours worked, the expert’s sample could be used to infer the hours worked.

The Court distinguished this case from Wal-Mart v. Dukes because the employees here all worked in the same facility, did similar work and were paid under the same policy.

The Court declined to address the larger issue of whether the class included some workers who were not in fact injured and not legally entitled to any damages.

California employers are required by law to keep accurate time and payroll records and there are penalties for failing to do so. Make sure that employees record their actual stop and start time(s) for each shift and record the start and end of the meal period provided.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

CalChamber members can read more about California’s Timekeeping and Recording Guidelines in the HR Library. Not a member? See how HRCalifornia can help you.

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