On November 10, the Supreme Court will hear oral arguments in the case of Tyson v. Bouaphakeo. In this case, Tyson Foods was ordered to pay $5.8 million in damages in a class action lawsuit brought by employees alleging violations of various federal and state labor laws. A class of 3,344 employees alleged that Tyson failed to properly compensate them for time they spent donning and doffing protective clothing and equipment and washing equipment and used statistical sampling to determine damage awards.

In Tyson v. Bouaphakeo, the Court will consider: (1) whether individual differences can be ignored when a class is certified under Federal Rule of Civil Procedure 23 or the Fair Labor Standards Act using statistical techniques that presume each class member are identical to the average observed in a sample; and (2) when the class includes hundreds of members who were not injured and don’t have a right to damages.

Tyson had added four minutes a day to the paychecks of employees to account for washing equipment and donning and doffing time, which refers to the time it takes to put on and take off protective clothing. Donning and doffing pay issues have been before the Supreme Court on several different occasions. The record shows that there were significant differences in the type of protective gear employees wore based on job responsibilities and individual choices. These differences directly related to the time it took different employees for donning, doffing and washing equipment. For example, pre-shift donning varied from 31 seconds to 13 and a half minutes and post-shift doffing varied from under two minutes to nine and a half minutes. Moreover, some employees put on their equipment when they are standing on the production line and already on the clock. Some employees did not have to wash their equipment because it is washed by the plant. Despite these material differences of fact, the Eighth Circuit found that Rule 23 governing who is and is not in a class allows class liability based on statistical sampling even in cases like these where there are significant differences among class members.

Petitioners argue that under Walmart Stores, Inc. v Dukes (decided in 2011) the Court has made clear that certification of a class cannot happen under Rule 23 unless if finds “after a rigorous analysis” that four requirements are met: numerosity, typicality, commonality, and adequacy of representation. Petitioners argue that “[f]aithful adherence” to these standards would have resulted in the case not being certified because of the wide variance among class members in the type of clothing and protective gear they wore and whether or not they even washed equipment. Petitioners also argue that the use of statistical techniques allowed plaintiffs to “airbrush” away real differences among class members resulting in compensation of class members who suffered no injury.

Respondents argue that Tyson failed to accurately report each individual worker’s time and instead simply added four minutes of time to pay checks for donning, doffing and washing equipment. This failure to accurately report relieves its employees from having to calculate exactly how many hours they lost according to a 1946 case entitled, Anderson v. Mt. Clemons Pottery Co.

Tyson v. Bouaphakeo is one of three class action cases that, to date, the Supreme Court has agreed to hear during the 2015 term. Employers and plaintiffs alike will be watching to see whether the Court will continue down the path it laid in Walmart v. Dukes to rigorously enforce class certification rules or whether certain of those rules can be loosened in certain instances.