“The U.S. Supreme Court recently deviated from its historically stringent
view on class certification and affirmed an Eighth Circuit decision
to uphold certification of a class of Tyson Foods, Inc. employees who
brought suit against Tyson for a violation of the Fair Labor Standards Act
of 1938 (FLSA),” Shook Miami attorneys Frank Cruz-Alvarez and Rachel
Canfield explain in an April 13, 2016, analysis for the Washington Legal
Foundation’s Legal Pulse.

The article first describes the suit’s origins; Tyson initially paid all
employees for an equal amount of time spent donning and doffing
protective gear but later adjusted the policy to pay some employees for
additional “don and doff” time. Cruz-Alvarez and Canfield note that
“Plaintiffs alleged Tyson’s failure to compensate them for time spent
performing this ‘integral and indispensable’ work activity violated
the FLSA by lengthening their workweek beyond forty hours without
providing them with overtime pay.”

They also note that Tyson did not keep records of don-doff time, so
“employees relied on representative evidence,” all aimed at calculating
the average time that each group of employees spent to don and doff
their protective gear. The company challenged “whether certification
based on representative evidence was sufficient to satisfy Rule 23(b)(3)’s
requirement that ‘questions of law or fact common to class members
predominate over any questions affecting only individual members.’”

“Whether Tyson foreshadows an overall shift in the Court’s attitude
toward class-action certification remains to be seen,” Cruz-Alvarez and
Canfield conclude. “Tyson’s language indicates the decision is limited.
The decision itself articulates a more clearly defined predominance
analysis and highlights important factors to consider in the future, such
as whether a business should maintain adequate records of statutorily
required information or whether to implement uniform policies. It also
alerts litigators to the importance of raising a Daubert challenge or
considering whether challenging a plaintiff’s proposal to restructure the
proceedings is favorable in the long term.”


Issue 600

About The Author


For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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