The federal Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., requires employers to pay a minimum wage and overtime compensation. Employees may file suit to recover wages owed under the FLSA, and they may file a class action if enough individuals have similar claims. Fed. R. Civ. P. 23. The U.S. Supreme Court heard arguments in late 2015 in a case, Tyson Foods, Inc. v. Bouaphakeo, in which the employer objects to the use of summary data, based on statistical analysis, to prove wage violations. The employees respond by arguing that the employer cannot use its own recordkeeping failure as a defense against FLSA liability. The decision could have a significant impact on how classes of employees can prove their claims in FLSA suits.
A common FLSA claim involves employers who require workers to spend unpaid time performing work-related tasks. If the time spent on these tasks pushes an employee’s total amount of work time over 40 hours in a week, or pushes the average hourly wage below the federal minimum of $7.25 per hour, the employer may be liable for unpaid wages and other damages. Time spent changing into and out of work clothes or uniforms, also known as “donning and doffing,” is one example of this sort of claim.
Plaintiffs who have substantially similar claims against an employer can pool their claims in a class action, provided they meet the four requirements of numerosity of plaintiffs, commonality of claims, typicality of the class representatives’ claims, and fair and adequate representation by the class representatives. Fed. R. Civ. P. 23(a). The FLSA allows employees to file a collective action against an employer. 29 U.S.C. § 216(b). The key difference between the two is that the FLSA requires plaintiffs to give consent, or “opt in,” to being part of the case.
The dispute in Bouaphakeo involves an employer’s donning and doffing policy at an Iowa meat-processing plant. The employer only considered employees to be “on the clock” once they were at their work stations. It allowed only four minutes of compensated time for employees to don and doff the protective equipment required for their particular jobs, which they did at the beginning of a shift, before and after lunch, and at the end of a shift. A group of employees filed suit in 2007, alleging a collective action under the FLSA and a Rule 23 class action under state wage law.
The plaintiffs presented individual timesheets at trial, as well as a “time study” that calculated the average time spent donning and doffing protective equipment, and walking to and from workstations, based on observations from 744 employees. A jury awarded the plaintiffs nearly $5.8 million, and the appellate court affirmed the verdict and award. Bouaphakeo v. Tyson Foods, 765 F.3d 791 (8th Cir. 2014).
The Supreme Court granted the employer’s petition for certiorari in June 2015, and it heard oral arguments in November. In its brief, the employer argues that the plaintiffs’ time study did not accurately reflect differences in individual employees’ work schedules, suggesting that each plaintiff should have to litigate their claim individually. The plaintiffs cited a Supreme Court case that allowed the use of “inferential proof” to establish FLSA violations, Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), when an employer fails to keep adequate records of employee time.
If you need to speak to a wage law attorney in New Jersey or New York, contact the Resnick Law Group today through our website, at 973-781-1204, or at 646-867-7997.
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Proposed New York City Legislation Would Protect Independent Contractors from Wage Theft, The New Jersey Employment Law Firm Blog, January 21, 2016
New Jersey Judge Approves Settlement in FLSA Class Action for Unpaid Overtime, The New Jersey Employment Law Firm Blog, January 15, 2016
Unpaid Intern Sues Celebrity Twins Under State Wage and Hour Laws, The New Jersey Employment Law Firm Blog, September 25, 2015