Supreme Court Authorizes Use Of Statistical Sampling In Wage And Hour Case

In Tyson Foods’ decade-long battle against its employees, the U.S. Supreme Court upheld the use of sampling to estimate the amount of time workers spent “doffing and donning” protective gear at Tyson’s Iowa “kill, cut and retrim” pork processing plant.

Plaintiffs introduced a sampling analysis at trial – based on 744 videotaped observations- which showed the average time workers spent putting on and taking off protective gear.  Tyson argued against class certification on predominance grounds, stating that differences in the time spent doffing and donning by each employee should have defeated class treatment.

The Court stated that the underlying question was whether the statistical sampling could have been used to establish liability in an individual action.  Here, where the sampling was used to fill an evidentiary gap caused by Tyson’s failure to keep records, the Court held, citing its Mt. Clemens decision, that “the experience of a subset of employees can be probative as to the experiences of all of them.”

The Court also declined to take up the issue of whether uninjured class members could recover as premature, but noted that the issue “is one of great importance.”

The ruling was 6-2, with Justices Thomas and Alito dissenting.