Supreme Court upholds representative time study in don/doff class action

The U.S. Supreme Court’s decision this week in Tyson Foods, Inc. v. Bouaphakeo et al. came as a surprise to many observers, and has the potential to significantly influence the manner in which wage and hour collective and class actions are litigated going forward. We note that while the decision allowing for use of representative evidence in a donning and doffing class or collective action is not ideal, it is not as bad as it could have been. The Court did, after all, make clear that such evidence is permissible only if each plaintiff could have used the same evidence in an individual action. On the other hand, plaintiffs who clear that hurdle now will be permitted to rely on a time study conducted on a sample of class members to calculate an average donning/doffing time, which is then extrapolated to each member of the class — even if the actual time spent on the activity in question varies dramatically among employees and even if some of the class members failed to prove damages at all based on that time study. Cozen O’Connor offers a comprehensive analysis of the case, including several strategic lessons for employers, at www.cozen.com/news-resources/publications/2016/scotus-opens-the-door-to-representative-evidence-in-donning-and-doffing-cases. (Jeremy Glenn, Cozen O’Connor)

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