Workplace Issues

High Court Upholds ‘Trial by Formula’ Evidence

Tyson Foods workers relied on statistical evidence from an industrial relations expert to show they worked more than 40 hours a week.
Matthew HellerMarch 22, 2016
High Court Upholds ‘Trial by Formula’ Evidence

The U.S. Supreme Court on Tuesday said statistical evidence can be used to establish liability in class-action suits against businesses, upholding a concept that has been criticized as “trial by formula.”

Tyson Foods challenged the concept after a jury awarded $2.9 million to workers at an Iowa pork processing plant who said they should have been paid overtime for putting on and taking off protective gear. Since Tyson did not keep records, the workers relied on statistical evidence from an industrial relations expert to show they worked more than 40 hours a week.

Companies have said the use of such evidence can result in unfair damages. But a 6-2 Supreme Court majority refused to impose a blanket rule that would allow, or prohibit, it.

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“This case presents no occasion for adoption of broad and categorical rules governing the use of representative and statistical evidence in class actions,” the court said. “Rather, the ability to use a representative sample to establish class-wide liability will depend on the purpose for which the sample is being introduced and on the underlying cause of action.”

The opinion also held that Wal-Mart Stores v. Dukes, which made it harder for workers, investors and consumers to pursue class actions, was distinguishable from the Tyson workers’ claims.

“While the experiences of the employees in Wal-Mart bore little relationship to one another, in this case each employee worked in the same facility, did similar work, and was paid under the same policy,” Justice Anthony Kennedy wrote for the majority.

The Tyson plaintiffs represent a class of more than 3,000 workers. Their expert conducted video observations of a sample of 53 employees donning and doffing protective gear to estimate that it took an average of 18 minutes a day for the cut and retrim departments and 21.25 minutes for the kill department to complete the task.

“Had the employees proceeded with individual lawsuits, each employee likely would have had to introduce [the expert’s] study to prove the hours he or she worked,” Kennedy wrote. “The representative evidence was a permissible means of showing individual hours worked.”

In a dissent, Justice Clarence Thomas said the majority “puts 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.”

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