One of the most effective ways to hold big businesses accountable for wrongdoing is the class action device. Class actions allow a group of people who were all hurt in a similar way to band together and bring their claims as a group. Class actions reduce the costs of litigation for plaintiffs, help ensure people will get their day in court for small harms that would not be worth an individual suit, and increase the efficiency of our courts by adjudicating, all at once, a matter that affects large numbers of people. Not surprisingly, corporate interests have been pushing back against class actions at every opportunity. They would prefer that plaintiffs—small businesses, consumers, employees, victims of environmental disasters—go it alone, seeking relief only on an individual basis while widespread misconduct goes unchecked.
In the latest iteration of this attack, Tyson Foods is attempting to force a few thousand of its employees to each go it alone in separate suits for overtime pay. The employees argue that, as a result of Tyson’s failure to keep accurate records of the time employees worked, Tyson underpaid them in violation of the Fair Labor Standards Act (FLSA). Specifically, Tyson required employees to wear sanitation and protective gear, but didn’t pay them for time spent putting it on or taking it off, which Tyson now concedes should have been counted as work. A jury sided with the employees and awarded them nearly $6 million.
But Tyson argues that the employees should not be able to sue as a class because they did not always wear the exact same gear and thus were not short-changed the exact same amount. Tyson’s argument isolates this slight difference between class members, ignoring how their claims are identical in nearly every other respect, including that they all work in the same meat-processing facility, wear substantially the same equipment, and were all paid according to the same, unlawful policy. At bottom, Tyson’s argument is that a class action can only proceed when every class member has the same type and degree of injury—a proposition that courts have long rejected, for good reason. From environmental disasters like the BP oil spill, to financial frauds that hurt big and small investors alike, class actions have long involved plaintiffs with a considerable range of injuries. Indeed, it is rare that some illegal act inflicts precisely the same amount of harm on hundreds or thousands of different people. If the Court were to accept Tyson’s argument, then, the very existence of class actions would be threatened.
Tyson’s bold request might have been encouraged by a string of recent Supreme Court decisions that have been hostile to class actions. In 2011, in AT&T v. Concepcion, the Roberts Court held that consumers could be forced into unfair, individual arbitration proceedings even when state law protects their right to form a class action. That same term, in Wal-Mart v. Dukes, the Court broke up a class of female employees who alleged nationwide gender discrimination in pay and promotion practices. (In fact, Tyson first moved to break up this class of employees immediately after the Wal-Mart ruling.) Through these pro-corporate rulings, the Roberts Court invited more attacks on the class action device—resulting in three reaching the Court this term (audio analyses of the arguments in Spokeo, Inc. v. Robins and Campbell-Ewald Co. v. Gomez are also available).
But during oral argument in this case, it appeared that corporate interests may have finally pushed their luck too far.