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April 13, 2016

How to calculate how much time it takes to get dressed for work: The case of Tyson Foods and the future of statistics and class action damage calculations

The legal decisions that come before America’s courts can often be mind-numbingly tedious, yet the outcome can still have far-reaching consequences. That is the case with last month’s Supreme Court decision in Tyson Foods v. Bouaphakeo.

Tyson workers brought a class action lawsuit against the poultry producer asking for back pay for the time it took them to put on and take off the special clothing required for working in the processing plant. The question before the Court was whether it was possible to decide on a single amount of money to divide equally among the class, given the fact that Tyson has 3,344 employees performing over 400 different jobs—all with different types of work clothing.

The plaintiffs’ lawyers’ solution was to calculate the time based on a sample of the workers’ “average” time and multiply that over the entire class of employees. Tysons argued that this would inaccurately over-pay some employees while underpaying others, and that the issue should be tried on an individual employee basis.

The Supreme Court ruled against Tyson 6-2. 

The broader consequences of this decision is that it opens the door for an increase in this “trial by formula” litigation, where plaintiffs’ lawyers can include class members without proving similar harm.

The plaintiffs’ lawyers calculated from its sample that it took 18-21 minutes for putting on and taking off work clothing. But individual times will vary widely.  Furthermore, according to Federal Rule of Civil Procedure 23, in order for a court to certify a class action lawsuit, its members must have a common harm.

Plaintiffs’ lawyers may now argue that the decision allows class action lawsuits based on a statistical sample of tens of thousands of employees who do not share the same harm but work in similar jobs. In these wage and hour suits, plaintiffs’ lawyers will also be incentivized to skew the sample by picking individuals who work longer and take more time.

The ruling in this case also raises the question of who benefits most from this outcome. While some employees get more than deserved, others surely get less. One group that is guaranteed to get more is the plaintiffs’ lawyers, who now have an incentive for gaming the sample to skew toward those workers whose jobs require the most time to suit on and off.

The court system is not a factory assembly line, and not all plaintiffs have suffered the same. The role of science and statistics is important in the justice system, but this extrapolation of data only benefits the plaintiffs’ lawyers by upping the damages.  

The Tysons case will be a model for future litigation of this kind. Sometimes, the smallest details of the law can have a major impact.

 

 

 

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