by Jason Steed, Associate at Bell Nunnally and president of the ACS Dallas-Ft. Worth Lawyer Chapter
Class actions are crucial to protecting the rights and interests of workers and consumers. If an employer underpays a worker a few dollars every paycheck—or a credit card company overcharges a consumer a few pennies per transaction—the total loss to that worker or consumer might be only a few hundred dollars. That might be a lot of money to the individual worker or consumer, but it’s not enough to justify hiring an attorney for a lawsuit. Class actions enable dozens or hundreds or even thousands of individuals to bundle their claims into a single lawsuit so workers and consumers can recover the sums they are owed. And the threat of a class action discourages corporations and other entities from adopting schemes that might nickel-and-dime us to death.
This is why the Supreme Court’s recent decisions undermining class action litigation are of great concern to those who care about the rights and interests of workers and consumers. In 2011, for example, in a case called Wal-Mart Stores v. Dukes, the Supreme Court made it much harder to certify a nationwide class action for employees seeking to recover lost pay due to sexual discrimination. According to the Court’s majority in Dukes (made up of the five most conservative justices), employees can’t bring a class action for sexual discrimination unless they can show that every worker in the proposed class suffered exactly the same sort of bias and discrimination. Statistical sampling isn’t good enough to support the class action. And without the ability to rely on statistical sampling to show commonality among members of the proposed class, large corporations will now be much less likely to face large class actions based on claims of discrimination.
This Dukes decision looms in the background as the Court considers another important class action case this term. In Tyson Foods, Inc. v. Bouaphakeo, a group of several thousand employees at Tyson Foods brought a class action claiming Tyson failed to pay them sufficient wages for the time they spent donning (putting on) and doffing (taking off) personal protective gear before and after work. To prove the amount of lost wages, the workers relied on statistical sampling—averaging the times that various employees spent donning and doffing their gear. The district court certified the class, a jury returned a verdict of $5.8 million for the employees, and the Eighth Circuit Court of Appeals affirmed this judgment.
When the Supreme Court decided to review the case, many Court watchers assumed the conservatives on the Court were going to take another swipe at class actions. Tyson Foods argues that the employees in the proposed class were performing different activities and wearing different protective gear—which created too much disparity in the amount of time they spent donning and doffing their gear. In short, Tyson wants the Court to decide this case much in the same way it decided Dukes. And if the Court accepts Tyson’s arguments, it could once again make it harder for workers to bring a class action. In effect, Bouaphakeo could do to wage-and-hour class actions what Dukes did to discrimination class actions.
But those of us who witnessed the oral argument in Bouaphakeo are holding onto a few threads of hope spun from the questions raised by Justices Ginsburg, Kagan, Sotomayor, Breyer, and—yes—even Kennedy. It’s never wise to put too much stock in what happens at oral argument. But it did seem as though there were at least five justices willing to question whether this case is really about class commonality. In fact, Justice Kagan laid the groundwork for deciding that the case isn’t about class actions at all. Instead, Bouaphakeo might only be about the kinds of evidence plaintiffs can use (statistical sampling and averaging) to prove the amount of their lost wages. Justice Breyer—after reading a passage from one of the Court’s prior decisions in which it accepted the use of this sort of “representative proof”—asked Tyson’s lawyer: “What’s wrong with that?” And Justice Kennedy appeared to embrace the view being taken by Kagan and Breyer.
If this is the way the Court’s majority goes in Bouaphakeo, then this case could actually turn into a big win for workers in wage-and-hour cases. But, again, we can’t put too much stock in what happens at oral argument. There’s still a chance it goes the other way. Bottom line: When the Supreme Court decides Bouaphakeo, it’ll be big news—one way or the other.