One way in which the Roberts Court has consistently earned its reputation as big-business friendly is its zeal to chip away at Americans’ ability to hold corporations accountable by banding together in class-action lawsuits.

As Justice Elena Kagan wrote two years ago in her blistering dissent in American Express v. Italian Colors: “To a hammer, everything looks like a nail. And to a Court bent on diminishing the usefulness of [the class-action rules], everything looks like a class action, ready to be dismantled.”

Tyson Foods v. Bouaphakeo—a case set for oral argument before the justices on Tuesday, November 10—has the potential to be yet another nail in the class-action coffin. In two distinct ways, the case threatens to make it harder for a class to become “certified”—the initial step in which a court finds that class members have enough in common to move forward with a lawsuit in unison.

Trial by Formula?

The first way in which the case threatens class actions focuses on how plaintiffs may actually prove their case. Tyson will be one of the first tests of the implications of the Court’s 2011 blockbuster decision in Wal-Mart Stores, Inc. v. Dukes. In that case, Justice Scalia’s opinion for the Court rejected what it called “trial by formula,” deciding that a nationwide class of workers couldn’t allege sex discrimination based on the experiences of a sample set of female workers.

Tyson, however, isn’t a sprawling national class action. Instead, the action takes place at just a single Tyson Foods slaughterhouse in Iowa. Before and after each shift—often six a week, more than eight hours each—Tyson workers put on protective gear like hard hats, boots, and gloves, and set up equipment to secure the heavy-duty knives needed to turn pig into pork.

But for many years, the clock only officially started when that first hog arrived at a worker’s station, and shut off after the last rolled away. Until 2010, the company never paid workers for more than eight minutes of extra work for these required pre- and post-shift tasks—even though employees knew they took far longer.

Tyson is no stranger to disputes over violations of the Fair Labor Standards Act, or FLSA. Through decades of litigation across the country, it has exhibited, as one federal judge put it in 2008, “what can only be described as a deeply-entrenched resistance” to compliance. Here, workers challenge Tyson’s violation of the FLSA’s requirement that employers record, and pay for, the actual amount of time spent working, including pre- and post-shift duties. In fact, a court order from past litigation had specifically put Tyson on notice about its obligation to keep records at this very slaughterhouse.

The first question presented by the case stems from Tyson’s direct violation of both the FLSA and that court order. Because Tyson failed to keep accurate time sheets, the workers turned to other methods to calculate the missing pay. They hired experts to analyze the work habits of a sample of plant workers and produce time studies demonstrating that these unpaid tasks took upwards of 20 minutes to complete. The jury’s verdict, finding Tyson liable for FLSA violations, relied on that expert analysis.

Tyson now hopes to ban this method for workers to prove their claims. It asks the Court to decide the question: Can a class action be certified based on statistical averages like a time study, even when there may be individual differences among class members?

Tyson here asks the Court to hand over an absurd get-out-of-jail-free card. It was Tyson that failed to record time accurately, and it now wants to close off the only other avenue left for workers to prove that they were not paid for their work. The Obama administration, in an amicus brief on behalf of the workers, points out that seven decades of precedent support their position. All the way back in 1945, the administration writes, the Court understood that “employees should not be penalized” for their employer’s failure to keep required records.

Bait and Switch

The case also involves another, potentially even more troubling, question—the focus of an amicus brief that I filed on behalf of a group of non-profit organizations that stand up for low-wage workers and civil rights claimants (led by the Impact Fund, including the Legal Aid Society and Public Advocates, both AFJ members).

When Tyson asked the Court to take its case, its petition initially asked the Court to consider a second question: Must plaintiffs prove, at the class-certification stage, that all class members have suffered injury?

This unprecedented hurdle would undermine the very foundation of the class-action device. Plaintiffs would have to show early on, before they have taken discovery or assembled their evidence, that every member of a group will ultimately win—putting the cart before the horse. When the time came for the parties to brief the Court on the merits of the case, however, even Tyson chose not to stand by this extreme argument.

Rather than move forward with the extreme argument on which it convinced the Court to take the case, Tyson has now fallen back on a request for a new, equally problematic hurdle for class actions. It now asks whether plaintiffs must provide, at the class-certification stage, a “mechanism” by which they will “identify the uninjured class members,” and ensure that they won’t receive compensation after trial.

Tyson’s proposed system would place undue emphasis on minor concerns about accuracy, at the expense of an efficient distribution of justice, and impose a barrier before any evidence has been heard.

Our brief argues that the Court should not reward Tyson’s abuse of the judicial process, and should decline to hear this question at all. The company only raised this question in the final stage of the case, and no lower court has had the opportunity to weigh in on this unprecedented test.

But the very fact that the Roberts Court took the case despite all of its problems, and the Court’s track record in recent years in class-action cases, gives us no reason to be optimistic here.


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