On Tuesday, the United States Supreme Court severely limited the reach of its 2011 class action decision in Wal-Mart Stores v. Dukes. Remember, Dukes threw out a large class action against Wal-Mart alleging race discrimination in promotional opportunities. The case has been a killer for potential class action claims in employment cases. Not anymore.
In Tyson Foods v. Bouaphakeo, the Supreme Court sided with thousands of workers at a pork processing plant in Iowa who sought class action status to recover overtime pay. Perhaps the most important part of this opinion, however, is not just the result, but the vote—6-2, which the usual suspects dissenting (Justice Clarence Thomas and Justice Samuel Alito).
Justice Anthony Kennedy, writing for the Court, held the plaintiffs were entitled to rely on statistics to prove their case. According to Justice Kennedy’s opinion, the Tyson workers performed tasks that were “grueling and dangerous,” including slaughtering hogs, trimming the meat, and preparing it for shipment. They sought to be paid for the time they had spent putting on and taking off protective gear to prevent knife cuts (what is called a “donning and doffing” case).
Tyson argued against class action status because, it said, there were not accurate records of how much time and how often each worker spent donning and doffing the protective gear. But the Court allowed the class to prove their damages based on an expert witness’s statistical inferences from hundreds of videotaped observations of how long it took the workers to get ready.
Here’s the best part of the opinion—“[Dukes] does not stand for the broad proposition that a representative sample is an impermissible means of establishing classwide liability.”
In a dissent that sounded the familiar “corporations over people” theme, Justice Thomas, joined by Justice Alito, lamented the opinion as putting “employers to an untenable choice.” “They must either track any time that might be the subject of an innovative lawsuit, or they must defend class actions against representative evidence that unfairly homogenizes an individual issue.”
This was the second major opinion from the Court to favor class actions. In Campbell-Ewald v. Gomez, a non-employment case, the Supreme Court ruled (6-3) that companies cannot moot class action cases by “cherry pick” lead plaintiffs through an offer to give the lead plaintiff everything he or she sought.