No.

14-1146
SUPREME COURT OF THE UNITED STATES

Tyson Foods, Inc. v. Bouaphakeo

577 U.S. 442 (2016) •
136 S. Ct. 1036 • 194 L. Ed. 2d 124
Decided Mar 22, 2016

No. 14–1146. David C. Frederick, Washington, DC, for

Respondents.
03-22-2016
Elizabeth B. Prelogar, for the United States as
TYSON FOODS, INC., Petitioner v. Peg
amicus curiae, by special leave of the Court,
BOUAPHAKEO, et al., individually and on behalf
supporting the respondents.
of all others similarly situated.
Robert L. Wiggins, Jr., Wiggins, Childs, Quinn, &
Carter G. Phillips, Washington, DC, for Petitioner.
Pantazis, LLC, Birmingham, AL, Scott
David C. Frederick, Washington, DC, for
Michelman, Counsel of Record, Scott L. Nelson,
Respondents. Elizabeth B. Prelogar, for the United
Public Citizen, Litigation Group, Washington, DC,
States as amicus curiae, by special leave of the
for Respondents.
Court, supporting the respondents. Robert L.
Wiggins, Jr., Wiggins, Childs, Quinn, & Pantazis, Michael J. Mueller, Emily Burkhardt, Vicente,
LLC, Birmingham, AL, Scott Michelman, Evangeline C. Paschal, Hunton & Williams,
Counsel of Record, Scott L. Nelson, Public Washington, DC, Carter G. Phillips, Joseph R.
Citizen, Litigation Group, Washington, DC, for Guerra, C. Frederick Beckner III, Kathleen
Respondents. Michael J. Mueller, Emily Moriarty, Mueller, Christopher A. Eiswerth,
Burkhardt, Vicente, Evangeline C. Paschal, Sidley Austin LLP, Washington, DC, for
Hunton & Williams, Washington, DC, Carter G. Petitioner.
Phillips, Joseph R. Guerra, C. Frederick Beckner
David C. Frederick, Derek T. Ho, Matthew A.
III, Kathleen Moriarty, Mueller, Christopher A.
Seligman, Kellogg, Huber, Hansen, Todd, Evans
Eiswerth, Sidley Austin LLP, Washington, DC, for
& Figel, PLLC, Washington, DC, Robert L.
Petitioner. David C. Frederick, Derek T. Ho,
Wiggins, Jr., Wiggins, Childs, Pantazis, Fisher &
Matthew A. Seligman, Kellogg, Huber, Hansen,
Goldfarb, LLC, Birmingham, AL, Scott
Todd, Evans & Figel, PLLC, Washington, DC,
Michelman, Scott L. Nelson, Allison M. Zieve,
Robert L. Wiggins, Jr., Wiggins, Childs, Pantazis,
Public Citizen, Litigation Group, Washington, DC,
Fisher & Goldfarb, LLC, Birmingham, AL, Scott
Eric Schnapper, Univ. of Washington, School of
Michelman, Scott L. Nelson, Allison M. Zieve,
Law, Seattle, WA, for Respondents.
Public Citizen, Litigation Group, Washington, DC,
Eric Schnapper, Univ. of Washington, School of Justice KENNEDY delivered the opinion of the
Law, Seattle, WA, for Respondents. 446 Court.*446 Following a jury trial, a class of
employees recovered $2.9 million in
Justice KENNEDY delivered the opinion of the compensatory damages from their employer for a
Court. violation of the Fair Labor Standards Act of 1938
(FLSA), 52 Stat. 1060, as amended, 29 U.S.C. §
Carter G. Phillips, Washington, DC, for Petitioner.

1
 Tyson Foods, Inc. v. Bouaphakeo 577 U.S. 442 (2016)

201 et seq . The employees' primary grievance additional four minutes a day for what it called
was that they did not receive statutorily mandated "K-code time." The 4–minute period was the
overtime pay for time spent donning and doffing amount of time Tyson estimated employees
protective equipment. needed to don and doff their gear. In 2007, Tyson
stopped paying K-code time uniformly to all
The employer seeks to reverse the judgment. It
employees. Instead, it compensated some
makes two arguments. Both relate to whether it
employees for between four and eight minutes but
was proper to permit the employees to pursue their
paid others nothing beyond their gang-time wages.
claims as a class. First, the employer argues the
At no point did Tyson record the time each
class should not have been certified because the
employee spent donning and doffing.
primary method of proving injury assumed each
employee spent the same time donning and Unsatisfied by these changes, respondents filed
doffing protective gear, even though differences in suit in the United States District Court for the
the composition of that gear may have meant that, Northern District of Iowa, alleging violations of
in fact, employees took different amounts of time the FLSA. The FLSA requires that a covered
to don and doff. Second, the employer argues employee who works more than 40 hours a week
certification was improper because the damages receive compensation for excess time worked "at a
awarded to the class may be distributed to some rate not less than one and one-half times the
persons who did not work any uncompensated regular rate at which he is employed." 29 U.S.C. §
overtime. 207(a). In 1947, nine years after the FLSA was
first enacted, Congress passed the Portal–to–Portal
The Court of Appeals for the Eighth Circuit
Act, which clarified that compensable work does
concluded there was no error in the District
not include time spent walking to and from the
Court's decision to certify and maintain the class.
employee's workstation or other "preliminary or
This Court granted certiorari. 576 U.S. ––––, 135
postliminary activities." § 254(d). The FLSA,
1042 S.Ct. 2806, 192 L.Ed.2d 846 (2015).*447 *1042
447
however, still requires employers to pay
I 448 employees for activities "integral and *448
indispensable" to their regular work, even if those
Respondents are employees at petitioner Tyson
activities do not occur at the employee's
Foods' pork processing plant in Storm Lake, Iowa.
workstation. Steiner v. Mitchell, 350 U.S. 247,
They work in the plant's kill, cut, and retrim
249, 255, 76 S.Ct. 330, 100 L.Ed. 267 (1956). The
departments, where hogs are slaughtered,
FLSA also requires an employer to "make, keep,
trimmed, and prepared for shipment. Grueling and
and preserve ... records of the persons employed
dangerous, the work requires employees to wear
by him and of the wages, hours, and other
certain protective gear. The exact composition of
conditions and practices of employment." §
the gear depends on the tasks a worker performs
211(c).
on a given day.
In their complaint, respondents alleged that
Until 1998, employees at the plant were paid
donning and doffing protective gear were integral
under a system called "gang-time." This
and indispensable to their hazardous work and that
compensated them only for time spent at their
petitioner's policy not to pay for those activities
workstations, not for the time required to put on
denied them overtime compensation required by
and take off their protective gear. In response to a
the FLSA. Respondents also raised a claim under
federal-court injunction, and a Department of
the Iowa Wage Payment Collection Law. This
Labor suit to enforce that injunction, Tyson in
statute provides for recovery under state law when
1998 began to pay all its employees for an
an employer fails to pay its employees "all wages

2
 Tyson Foods, Inc. v. Bouaphakeo 577 U.S. 442 (2016)

due," which includes FLSA-mandated overtime. "All current and former employees of
Iowa Code § 91A.3 (2013); cf. Anthony v. State, Tyson's Storm Lake, Iowa, processing
632 N.W.2d 897, 901–902 (Iowa 2001). facility who have been employed at any
time from February 7, 2004 [in the case of
Respondents sought certification of their Iowa law
the FLSA collective action and February 7,
claims as a class action under Rule 23 of the
2005, in the case of the state-law class
Federal Rules of Civil Procedure. Rule 23 permits
action], to the present, and who are or were
one or more individuals to sue as "representative
paid under a ‘gang time’ compensation
parties on behalf of all members" of a class if
system in the Kill, Cut, or Retrim
certain preconditions are met. Fed. Rule Civ. Proc.
departments." Id ., at 901.
23(a). Respondents also sought certification of
their federal claims as a "collective action" under The only difference in definition between the
29 U.S.C. § 216. Section 216 is a provision of the classes was the date at which the class period
FLSA that permits employees to sue on behalf of began. The size of the class certified under Rule
"themselves and other employees similarly 23, however, was larger than that certified under §
situated." § 216(b). 216. This is because, while a class under Rule 23
includes all unnamed members who fall within the
Tyson objected to the certification of both classes
class definition, the "sole consequence of
1043 on the same ground. It contended *1043 that,
conditional certification [under § 216 ] is the
because of the variance in protective gear each
sending of court-approved written notice to
employee wore, the employees' claims were not
employees ... who in turn become parties to a
sufficiently similar to be resolved on a classwide
collective action only by filing written consent
basis. The District Court rejected that position. It
with the court." Genesis Healthcare Corp. v.
concluded there were common questions
Symczyk, 569 U.S. ––––, ––––, 133 S.Ct. 1523,
susceptible to classwide resolution, such as
1530, 185 L.Ed.2d 636 (2013). A total of 444
"whether the donning and doffing of [protective
employees joined the collective action, while the
gear] is considered work under the FLSA, whether
Rule 23 class contained 3,344 members.
such work is integral and [in]dispensable, and
whether any compensable work is de minim[i]s ." The case proceeded to trial before a jury. The
449 *449 564 F.Supp.2d 870, 899 (N.D.Iowa 2008). parties stipulated that the employees were entitled
The District Court acknowledged that the workers to be paid for donning and doffing of certain
did not all wear the same protective gear, but equipment worn to protect from knife cuts. The
found that "when the putative plaintiffs are limited jury was left to determine whether the time spent
to those that are paid via a gang time system, there donning and doffing other protective equipment
are far more factual similarities than was compensable; whether Tyson was required to
dissimilarities." Id., at 899–900. As a result, the pay for donning and doffing during meal breaks;
District Court certified the following classes: 450 and the total *450 amount of time spent on work
that was not compensated under Tyson's gang-time
system.

Since the employees' claims relate only to

overtime, each employee had to show he or she
worked more than 40 hours a week, inclusive of
time spent donning and doffing, in order to
recover. As a result of Tyson's failure to keep
records of donning and doffing time, however, the

3
 Tyson Foods, Inc. v. Bouaphakeo 577 U.S. 442 (2016)

employees were forced to rely on what the parties Fox maintained, had potentially been
describe as "representative evidence." This undercompensated to some degree.
evidence included employee testimony, video
Respondents proposed to bifurcate proceedings.
recordings of donning and doffing at the plant,
They requested that, first, a trial be conducted on
and, most important, a study performed by an
the questions whether time spent in donning and
industrial relations expert, Dr. Kenneth Mericle.
doffing was compensable work under the FLSA
Mericle conducted 744 videotaped observations
and how long those activities took to perform on
and analyzed how long various donning and
average; and, second, that Fox's methodology be
doffing activities took. He then averaged the time
used to determine which employees suffered an
taken in the observations to produce an estimate of
FLSA violation and how much each was entitled
18 minutes a day for the cut and retrim
to recover. Petitioner insisted upon a single
departments and 21.25 minutes for the kill
proceeding in which damages would be calculated
department.
in the aggregate and by the jury. The District
Although it had not kept records for time spent Court submitted both issues of liability and
donning and doffing, Tyson had information damages to the jury.
regarding each employee's gang-time and K-code
Petitioner did not move for a hearing regarding the
time. Using this data, the employees' other expert,
statistical validity of respondents' studies under
Dr. Liesl Fox, was able to estimate the amount
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
1044 *1044 of uncompensated work each employee did
509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469
by adding Mericle's estimated average donning
(1993), nor did it attempt to discredit the evidence
and doffing time to the gang-time each employee
with testimony from a rebuttal expert. Instead, as
worked and then subtracting any K-code time. For
it had done in its opposition to class certification,
example, if an employee in the kill department had
petitioner argued to the jury that the varying
worked 39.125 hours of gang-time in a 6–day
amounts of time it took employees to don and doff
workweek and had been paid an hour of K-code
different protective equipment made the lawsuit
time, the estimated number of compensable hours
too speculative for classwide recovery. Petitioner
the employee worked would be: 39.125
also argued that Mericle's study overstated the
(individual number of gang-time hours worked) +
average donning and doffing time. The jury was
2.125 (the average donning and doffing hours for
instructed that nontestifying members of the class
a 6–day week, based on Mericle's estimated
could only recover if the evidence established they
average of 21.25 minutes a day) - 1 (K-code
"suffered the same harm as a result of the same
hours) = 40.25. That would mean the employee
unlawful decision or policy." App. 471–472.
was being undercompensated by a quarter of an
hour of overtime a week, in violation of the FLSA. Fox's calculations supported an aggregate award
On the other hand, if the employee's records of approximately $6.7 million in unpaid wages.
showed only 38 hours of gang-time and an hour of The jury returned a special verdict finding that
451 K-code time, the calculation *451 would be: 38 + time spent in donning and doffing protective gear
2.125 - 1 = 39.125. Having worked less than 40 452 at the beginning and end of the *452 day was
hours, that employee would not be entitled to compensable work but that time during meal
overtime pay and would not have proved an FLSA breaks was not. The jury more than halved the
violation. damages recommended by Fox. It awarded the
class about $2.9 million in unpaid wages. That
Using this methodology, Fox stated that 212
damages award has not yet been disbursed to the
employees did not meet the 40–hour threshold and
individual employees.
could not recover. The remaining class members,

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 Tyson Foods, Inc. v. Bouaphakeo 577 U.S. 442 (2016)

Tyson moved to set aside the jury verdict, arguing, than demonstrate a violation of the FLSA. In this
among other things, that, in light of the variation opinion, then, no distinction is made between the
in donning and doffing time, the classes should requirements for the class action raising the state-
not have been certified. The District Court denied law claims and the collective action raising the
Tyson's motion, and the Court of Appeals for the federal claims.
Eighth Circuit affirmed the judgment and the
A
award.
Federal Rule of Civil Procedure 23(b)(3) requires
The Court of Appeals recognized that a verdict for
that, before a class is certified under that
1045 the employees "require[d] inference" *1045 from
subsection, a district court must find that
their representative proof, but it held that "this
"questions of law or fact common to class
inference is allowable under Anderson v. Mt.
members predominate over any questions
Clemens Pottery Co., 328 U.S. 680, 686–688, 66
affecting only individual members." The
S.Ct. 1187, 90 L.Ed. 1515 (1946)." 765 F.3d 791,
"predominance inquiry tests whether proposed
797 (8th Cir.2014). The Court of Appeals rejected
classes are sufficiently cohesive to warrant
petitioner's challenge to the sufficiency of the
adjudication by representation. " Amchem
evidence for similar reasons, holding that, under
Products, Inc. v. Windsor, 521 U.S. 591, 623, 117
the facts of this case, the jury could have drawn "a
S.Ct. 2231, 138 L.Ed.2d 689 (1997). This calls
‘reasonable inference’ of class-wide liability." Id.,
upon courts to give careful scrutiny to the relation
at 799 (quoting Anderson v. Mt. Clemens Pottery
between common and individual questions in a
Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 90 L.Ed.
case. An individual question is one where
1515 (1946) ). Judge Beam dissented, stating that,
"members of a proposed class will need to present
in his view, the class should not have been
evidence that varies from member to member,"
certified.
while a common question is one where "the same
For the reasons that follow, this Court now evidence will suffice for each member to make a
affirms. prima facie showing [or] the issue is susceptible to
generalized, class-wide proof." 2 W. Rubenstein,
II
Newberg on Class Actions § 4:50, pp. 196–197
Petitioner challenges the class certification of the (5th ed. 2012) (internal quotation marks omitted).
state-law claims and the certification of the FLSA The predominance inquiry "asks whether the
collective action. The parties do not dispute that common, aggregation-enabling, issues in the case
the standard for certifying a collective action are more prevalent or important than the non-
under the FLSA is no more stringent than the common, aggregation-defeating, individual
standard for certifying a class under the Federal issues." Id., § 4:49, at 195–196. When "one or
Rules of Civil Procedure. This opinion assumes, more of the central issues in the action are
without deciding, that this is correct. For purposes common to the class and can be said to
of this case then, if certification of respondents' predominate, the action may be considered proper
class action under the Federal Rules was proper, under Rule 23(b)(3) even though other important
certification of the collective action was proper as matters will have to be tried separately, such as
453 well.*453 Furthermore, as noted above, Iowa's damages or some affirmative defenses peculiar to
Wage Payment Collection Law was used in this 454 some individual class members *454 ." 7AA C.
litigation as a state-law mechanism for recovery of Wright, A. Miller, & M. Kane, Federal Practice
FLSA-mandated overtime pay. The parties do not and Procedure § 1778, pp. 123–124 (3d ed. 2005)
dispute that, in order to prove a violation of the (footnotes omitted).
Iowa statute, the employees had to do no more

5
 Tyson Foods, Inc. v. Bouaphakeo 577 U.S. 442 (2016)

Here, the parties do not dispute that there are which the evidence is reliable in proving or
1046 important questions common to *1046 all class disproving the elements of the relevant cause of
members, the most significant of which is whether action. See Fed. Rules Evid. 401, 403, and 702.
time spent donning and doffing the required
It follows that the Court would reach too far were
protective gear is compensable work under the
it to establish general rules governing the use of
FLSA. Cf. IBP, Inc. v. Alvarez, 546 U.S. 21, 126
statistical evidence, or so-called representative
S.Ct. 514, 163 L.Ed.2d 288 (2005) (holding that
evidence, in all class-action cases. Evidence of
time spent walking between the locker room and
this type is used in various substantive realms of
the production area after donning protective gear
the law. Brief for Complex Litigation Law
is compensable work under the FLSA). To be
Professors as Amici Curiae 5–9; Brief for
entitled to recovery, however, each employee must
Economists et al. as Amici Curiae 8–10. Whether
prove that the amount of time spent donning and
and when statistical evidence can be used to
doffing, when added to his or her regular hours,
establish classwide liability will depend on the
amounted to more than 40 hours in a given week.
purpose for which the evidence is being
Petitioner argues that these necessarily person-
introduced and on "the elements of the underlying
specific inquiries into individual work time
cause of action," Erica P. John Fund, Inc. v.
predominate over the common questions raised by
Halliburton Co., 563 U.S. 804, 809, 131 S.Ct.
respondents' claims, making class certification
2179, 180 L.Ed.2d 24 (2011).
improper.
In many cases, a representative sample is "the only
Respondents counter that these individual
practicable means to collect and present relevant
inquiries are unnecessary because it can be
data" establishing a defendant's liability. Manual
assumed each employee donned and doffed for the
of Complex Litigation § 11.493, p. 102 (4th ed.
same average time observed in Mericle's sample.
2004). In a case where representative evidence is
Whether this inference is permissible becomes the
relevant in proving a plaintiff's individual claim,
central dispute in this case. Petitioner contends
that evidence cannot be deemed improper merely
that Mericle's study manufactures predominance
because the claim is brought on behalf of a class.
by assuming away the very differences that make
To so hold would ignore the Rules Enabling Act's
the case inappropriate for classwide resolution.
pellucid instruction that use of the class device
Reliance on a representative sample, petitioner
cannot "abridge ... any substantive right." 28
argues, absolves each employee of the
U.S.C. § 2072(b).
responsibility to prove personal injury, and thus
deprives petitioner of any ability to litigate its One way for respondents to show, then, that the
defenses to individual claims. sample relied upon here is a permissible method of
proving classwide liability is by showing that each
Calling this unfair, petitioner and various of its
class member could have relied on that sample to
amici maintain that the Court should announce a
establish liability if he or she had brought an
broad rule against the use in class actions of what
individual action. If the sample could have
the parties call representative evidence. A
1047 sustained a reasonable jury finding as *1047 to
categorical exclusion of that sort, however, would
hours worked in each employee's individual
make little sense. A representative or statistical
action, that sample is a permissible means of
sample, like all evidence, is a means to establish
establishing the employees' hours worked in a
455 or *455 defend against liability. Its permissibility
456 class action.*456 This Court's decision in
turns not on the form a proceeding takes—be it a
Anderson v. Mt. Clemens explains why Mericle's
class or individual action—but on the degree to
sample was permissible in the circumstances of

6
 Tyson Foods, Inc. v. Bouaphakeo 577 U.S. 442 (2016)

this case. In Mt. Clemens, 7 employees and their each employee likely would have had to introduce
union, seeking to represent over 300 others, Mericle's study to prove the hours he or she
brought a collective action against their employer worked. Rather than absolving the employees
for failing to compensate them for time spent from proving individual injury, the representative
walking to and from their workstations. The evidence here was a permissible means of making
variance in walking time among workers was that very showing.
alleged to be upwards of 10 minutes a day, which
Reliance on Mericle's study did not deprive
is roughly consistent with the variances in donning
petitioner of its ability to litigate individual
and doffing times here. 328 U.S., at 685, 66 S.Ct.
defenses. Since there were no alternative means
1187.
for the employees to establish their hours worked,
The Court in Mt. Clemens held that when petitioner's primary defense was to show that
employers violate their statutory duty to keep Mericle's study was unrepresentative or
proper records, and employees thereby have no inaccurate. That defense is itself common to the
way to establish the time spent doing claims made by all class members. Respondents'
uncompensated work, the "remedial nature of [the "failure of proof on th[is] common question"
FLSA] and the great public policy which it likely would have ended "the litigation and thus
embodies ... militate against making" the burden [would not have] cause[d] individual questions ...
of proving uncompensated work "an impossible to overwhelm questions common to the class."
hurdle for the employee." Id., at 687, 66 S.Ct. Amgen Inc. v. Connecticut Retirement Plans and
1187 ; see also Hoffmann–La Roche Inc. v. Trust Funds, 568 U.S. ––––, ––––, 133 S.Ct. 1184,
Sperling, 493 U.S. 165, 173, 110 S.Ct. 482, 107 1196, 185 L.Ed.2d 308 (2013). When, as here,
L.Ed.2d 480 (1989) ("The broad remedial goal of "the concern about the proposed class is not that it
the statute should be enforced to the full extent of exhibits some fatal dissimilarity but, rather, a fatal
its terms"). Instead of punishing "the employee by similarity—[an alleged] failure of proof as to an
denying him any recovery on the ground that he is element of the plaintiffs' cause of action—courts
unable to prove the precise extent of should engage that question as a matter of
uncompensated work," the Court held "an summary judgment, not class certification."
employee has carried out his burden if he proves Nagareda, Class Certification in the Age of
that he has in fact performed work for which he Aggregate Proof, 84 N.Y.U. L. Rev. 97, 107
was improperly compensated and if he produces 1048 (2009). *1048 Petitioner's reliance on Wal–Mart
sufficient evidence to show the amount and extent Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct.
of that work as a matter of just and reasonable 2541, 180 L.Ed.2d 374 (2011), is misplaced. Wal–
inference." 328 U.S., at 687, 66 S.Ct. 1187. Under Mart does not stand for the broad proposition that
these circumstances, "[t]he burden then shifts to a representative sample is an impermissible means
the employer to come forward with evidence of of establishing classwide liability.
the precise amount of work performed or with
Wal–Mart involved a nationwide Title VII class of
evidence to negative the reasonableness of the
over 1 ½ million employees. In reversing class
inference to be drawn from the employee's
certification, this Court did not reach Rule 23(b)
evidence." Id ., at 687–688, 66 S.Ct. 1187.
(3)'s predominance prong, holding instead that the
In this suit, as in Mt. Clemens, respondents sought class failed to meet even Rule 23(a)'s more basic
to introduce a representative sample to fill an requirement that class members share a common
evidentiary gap created by the employer's failure question of fact or law. The plaintiffs in Wal–Mart
to keep adequate records. If the employees had did not provide significant proof of a common
457 proceeded with 3,344 individual lawsuits, *457 policy of discrimination to which each employee

7
 Tyson Foods, Inc. v. Bouaphakeo 577 U.S. 442 (2016)

was subject. "The only corporate policy that the proceeding than they could have asserted in an
plaintiffs' evidence convincingly establishe[d was] 459 individual action.*459 In contrast, the study here
458 *458 Wal–Mart's ‘policy’ of allowing discretion by could have been sufficient to sustain a jury finding
local supervisors over employment matters"; and as to hours worked if it were introduced in each
even then, the plaintiffs could not identify "a employee's individual action. While the
common mode of exercising discretion that experiences of the employees in Wal–Mart bore
pervade[d] the entire company." Id., at 355–356, little relationship to one another, in this case each
131 S.Ct. 2541 (emphasis deleted). employee worked in the same facility, did similar
work, and was paid under the same policy. As Mt.
The plaintiffs in Wal–Mart proposed to use
Clemens confirms, under these circumstances the
representative evidence as a means of overcoming
experiences of a subset of employees can be
this absence of a common policy. Under their
probative as to the experiences of all of them.
proposed methodology, a "sample set of the class
members would be selected, as to whom liability This is not to say that all inferences drawn from
for sex discrimination and the backpay owing as a representative evidence in an FLSA case are "just
result would be determined in depositions and reasonable." Mt. Clemens, 328 U.S., at 687,
supervised by a master." Id., at 367, 131 S.Ct. 66 S.Ct. 1187. Representative evidence that is
2541. The aggregate damages award was to be statistically inadequate or based on implausible
derived by taking the "percentage of claims assumptions could not lead to a fair or accurate
determined to be valid" from this sample and 1049 estimate of the uncompensated hours *1049 an
applying it to the rest of the class, and then employee has worked. Petitioner, however, did not
multiplying the "number of (presumptively) valid raise a challenge to respondents' experts'
claims" by "the average backpay award in the methodology under Daubert ; and, as a result,
sample set." Ibid . The Court held that this "Trial there is no basis in the record to conclude it was
By Formula" was contrary to the Rules Enabling legal error to admit that evidence.
Act because it " ‘enlarge[d]’ " the class members'
Once a district court finds evidence to be
" ‘substantive right[s]’ " and deprived defendants
admissible, its persuasiveness is, in general, a
of their right to litigate statutory defenses to
matter for the jury. Reasonable minds may differ
individual claims. Ibid.
as to whether the average time Mericle calculated
The Court's holding in the instant case is in accord is probative as to the time actually worked by each
with Wal–Mart . The underlying question in Wal– employee. Resolving that question, however, is the
Mart, as here, was whether the sample at issue near-exclusive province of the jury. The District
could have been used to establish liability in an Court could have denied class certification on this
individual action. Since the Court held that the ground only if it concluded that no reasonable
employees were not similarly situated, none of juror could have believed that the employees spent
them could have prevailed in an individual suit by roughly equal time donning and doffing. Cf.
relying on depositions detailing the ways in which Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
other employees were discriminated against by 250–252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
their particular store managers. By extension, if The District Court made no such finding, and the
the employees had brought 1 ½million individual record here provides no basis for this Court to
suits, there would be little or no role for second-guess that conclusion.
representative evidence. Permitting the use of that
The Court reiterates that, while petitioner,
sample in a class action, therefore, would have
respondents, or their respective amici may urge
violated the Rules Enabling Act by giving
adoption of broad and categorical rules governing
plaintiffs and defendants different rights in a class

8
 Tyson Foods, Inc. v. Bouaphakeo 577 U.S. 442 (2016)

the use of representative and statistical evidence in Petitioner's new argument is predicated on the
460 class actions, this case provides no occasion *460 assumption that the damages award cannot be
to do so. Whether a representative sample may be apportioned so that only those class members who
used to establish classwide liability will depend on 461 suffered an FLSA violation recover *461 .
the purpose for which the sample is being According to petitioner, because Fox's mechanism
introduced and on the underlying cause of action. for determining who had worked over 40 hours
In FLSA actions, inferring the hours an employee depended on Mericle's estimate of donning and
has worked from a study such as Mericle's has doffing time, and because the jury must have
been permitted by the Court so long as the study is rejected Mericle's estimate when it reduced the
otherwise admissible. mT. CLemens, supra, at 687, damages award by more than half, it will not be
66 s.CT. 1187 ; see also fEd. rUles eVid. 402 and possible to know which workers are entitled to
702. The fairness and utility of statistical methods 1050 share in the award.*1050 As petitioner and its
in contexts other than those presented here will amici stress, the question whether uninjured class
depend on facts and circumstances particular to members may recover is one of great importance.
those cases. See, e.g., Brief for Consumer Data Industry
Association as Amicus Curiae . It is not, however,
B
a question yet fairly presented by this case,
In its petition for certiorari petitioner framed its because the damages award has not yet been
second question presented as whether a class may disbursed, nor does the record indicate how it will
be certified if it contains "members who were not be disbursed.
injured and have no legal right to any damages."
Respondents allege there remain ways of
Pet. for Cert. i. In its merits brief, however,
distributing the award to only those individuals
petitioner reframes its argument. It now concedes
who worked more than 40 hours. For example, by
that "[t]he fact that federal courts lack authority to
working backwards from the damages award, and
compensate persons who cannot prove injury does
assuming each employee donned and doffed for an
not mean that a class action (or collective action)
identical amount of time (an assumption that
can never be certified in the absence of proof that
follows from the jury's finding that the employees
all class members were injured." Brief for
suffered equivalent harm under the policy), it may
Petitioner 49. In light of petitioner's abandonment
be possible to calculate the average donning and
of its argument from the petition, the Court need
doffing time the jury necessarily must have found,
not, and does not, address it.
and then apply this figure to each employee's
Petitioner's new argument is that, "where class known gang-time hours to determine which
plaintiffs cannot offer" proof that all class employees worked more than 40 hours.
members are injured, "they must demonstrate
Whether that or some other methodology will be
instead that there is some mechanism to identify
successful in identifying uninjured class members
the uninjured class members prior to judgment and
is a question that, on this record, is premature.
ensure that uninjured members (1) do not
Petitioner may raise a challenge to the proposed
contribute to the size of any damage award and (2)
method of allocation when the case returns to the
cannot recover such damages." Ibid. Petitioner
District Court for disbursal of the award.
contends that respondents have not demonstrated
any mechanism for ensuring that uninjured class Finally, it bears emphasis that this problem
members do not recover damages here. appears to be one of petitioner's own making.
Respondents proposed bifurcating between the
liability and damages phases of this proceeding for

9
 Tyson Foods, Inc. v. Bouaphakeo 577 U.S. 442 (2016)

the precise reason that it may be difficult to A class may be certified under Federal Rule of
remove uninjured individuals from the class after Civil Procedure 23(b)(3) only if "questions of law
an award is rendered. It was petitioner who argued 1051 or fact common to class *1051 members
462 against that option *462 and now seeks to profit predominate over any questions affecting only
from the difficulty it caused. Whether, in light of 463 individual *463 members." A common question is
the foregoing, any error should be deemed invited, one in which "the issue is susceptible to
is a question for the District Court to address in generalized, class-wide proof." Ante, at 1045
the first instance. (quoting 2 W. Rubenstein, Newberg on Class
Actions § 4:50, pp. 196–197 (5th ed. 2012) )
***
(internal quotation marks omitted).
The judgment of the Court of Appeals for the
To prove liability and damages, respondents had to
Eighth Circuit is affirmed, and the case is
establish the amount of compensable (but
remanded for further proceedings consistent with
uncompensated) donning and doffing time for
this opinion.
each individual plaintiff. The Court properly
It is so ordered. concludes that despite the differences in donning
and doffing time for individual class members,
Chief Justice ROBERTS, with whom Justice
respondents could adequately prove the amount of
ALITO joins as to Part II, concurring.
time for each individual through generalized,
Petitioner Tyson Foods presents two primary class-wide proof. That proof was Dr. Mericle's
arguments. First, it claims that class certification representative study. As the Court observes, "each
was improper because each individual plaintiff class-member could have relied on that [study] to
spent different amounts of time donning and establish liability if he or she had brought an
doffing protective gear. Therefore, according to individual action." Ante, at 1046. And when
Tyson, whether and to what extent it owed representative evidence would suffice to prove a
damages to each individual employee for plaintiff's individual claim, that evidence cannot
uncompensated overtime was not a question be deemed improper merely because the claim is
capable of resolution on a class-wide basis. brought as part of a class action. See ante, at 1046
Second, Tyson argues that the verdict cannot stand – 1047.
because, while no one disputes that the class as
I agree with Justice THOMAS that our decision in
certified contains hundreds of uninjured
Anderson v. Mt. Clemens Pottery Co., 328 U.S.
employees, the plaintiffs have not come up with
680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), does
any way to ensure that those employees do not
not provide a "special, relaxed rule authorizing
recover damages from the jury's lump-sum award.
plaintiffs to use otherwise inadequate
The Court rejects the first argument and leaves the representative evidence in FLSA-based cases."
second for initial resolution by the lower courts. I Post, at 1056 (dissenting opinion). But I do not
join the Court's opinion in full. I write separately read the Court's opinion to be inconsistent with
to explain my understanding of the Court's that conclusion. Rather, I take the Court to
resolution of the case and to express my concern conclude that Dr. Mericle's study constituted
that the District Court may not be able to fashion a sufficient proof from which the jury could find
method for awarding damages only to those class "the amount and extent of [each individual
members who suffered an actual injury. respondent's] work as a matter of just and
reasonable inference"—the same standard of proof
I

10
 Tyson Foods, Inc. v. Bouaphakeo 577 U.S. 442 (2016)

that would apply in any case. Ante, at 1047 that plaintiff also worked more than 40 hours in a
(internal quotation marks omitted). It is with that week (including compensable donning and doffing
understanding that I join the opinion of the Court. time), he is owed no overtime pay and therefore
suffered no injury.
II
If the jury credited Dr. Mericle's averages—18
As for Tyson's second argument, it is undisputed
minutes per day of donning and doffing time for
that hundreds of class members suffered no injury
employees in the fabrication (cut and retrim)
464 in this case. See *464 Brief for Respondents 52–
departments, 21.25 for employees in the kill
53; Tr. of Oral Arg. 30. The question is: which
department—the District Court could have
ones? The only way to know is to figure out how
465 assumed *465 that the jury found that each
much donning and doffing time the jury found
plaintiff from those departments donned and
Tyson owed the workers in each department. But
doffed the average amounts of time and used those
the jury returned a lump-sum verdict of $2.9
averages to determine which plaintiffs had worked
million on a class-wide basis, without specifying
more than 40 hours (and awarded damages on that
any particular amount of donning and doffing time
understanding).
used to calculate that number. If we knew that the
jury had accepted the plaintiffs' proposed average The problem is that the jury obviously did not
donning and doffing times in calculating the credit Dr. Mericle's averages. According to Dr.
verdict, we could easily overcome this problem. Fox, another of the plaintiffs' experts, those
But we know the jury did no such thing. And with averages would have resulted in a $6.7 million
no way to reverse engineer the verdict to verdict across the 3,344 member class. Ante, at
determine how much donning and doffing time the 1044 – 1045. The jury, however, awarded the
jury found Tyson owed workers in each plaintiffs only $2.9 million.
department, we do not know which plaintiffs the
How, then, did the jury arrive at that $2.9 million
jury found to be injured (or not).
figure? The jury might have determined that Dr.
Tyson contends that unless the District Court can Mericle's average was correct for the kill
fashion a means of identifying those class department, but overstated for the fabrication
members not entitled to damages, it must throw departments. Or vice versa. Or the jury might have
out the jury's verdict and decertify the class. I found that Dr. Mericle's averages overstated the
agree with the Court's decision to leave that issue donning and doffing time in all departments, by
to be addressed in the first instance by the District varying degrees. Any of those conclusions would
Court. But I am not convinced that the District have been permissible on these facts, and any of
Court will be able to devise a means of those options would have reduced the jury verdict
distributing the aggregate award only to injured from the $6.7 million proposed by Dr. Fox. But in
class members. arriving at the $2.9 million verdict, we have no
way of knowing how much donning and doffing
As the Court explains, each plaintiff in this case
time the jury actually found to have occurred in
suffered actual harm only if he: (1) was not
the kill and fabrication departments, respectively.
compensated for at least some compensable
donning and doffing time; and (2) worked more And there's the rub. We know that the jury must
than 40 hours in a workweek, including any have found at least one of Dr. Mericle's two
1052 compensable donning *1052 and doffing time. See averages to be too high. And we know, as Dr. Fox
ante, at 1049 – 1050. In other words, it is not testified, that if Dr. Mericle's averages were even
enough that a plaintiff was uncompensated for slightly too high, hundreds of class members
compensable donning and doffing time; unless would fall short of the 40–hour workweek

11
 Tyson Foods, Inc. v. Bouaphakeo 577 U.S. 442 (2016)

threshold that would entitle them to damages. See will imminently suffer, actual harm." Lewis v.
post, at 1055 – 1056. But because we do not know Casey, 518 U.S. 343, 349, 116 S.Ct. 2174, 135
how much donning and doffing time the jury L.Ed.2d 606 (1996). Therefore, if there is no way
found to have occurred in each department, we to ensure that the jury's damages award goes only
have no way of knowing which plaintiffs failed to to injured class members, that award cannot stand.
cross that 40–hour threshold. This issue should be considered by the District
Court in the first instance. As the Court properly
To illustrate: Take a fabrication employee and a
concludes, the problem is not presently ripe for
kill employee, each of whom worked a 39–hour
467 our review.*467 Justice THOMAS, with whom
466 workweek before *466 counting any compensable
Justice ALITO joins, dissenting.
donning and doffing time. If the jury credited Dr.
Mericle's kill department average but discounted Our precedents generally prohibit plaintiffs from
his fabrication average to below one hour per maintaining a class action when an important
week, the jury would have found that the kill element of liability depends on facts that vary
employee was injured, while the fabrication among individual class members. This case
employee was not. But the jury also might have concerns whether and when class-action plaintiffs
done the exact opposite. We just don't know—and can overcome that general rule by using
so we have no way to determine which plaintiffs representative evidence as common proof of an
the jury concluded were injured. otherwise individualized issue. Our precedents
resolve that question: Before class-action plaintiffs
The plaintiffs believe they can surmount this
can use representative evidence in this way,
obstacle. As the Court explains, they propose to
district courts must undertake a rigorous analysis
work backward from the damages award by
to ensure that such evidence is sufficiently
assuming that each employee donned and doffed
probative of the individual issue to make it
for an identical amount of time. Ante, at 1049 –
susceptible to classwide proof. The District Court
1050. That won't work, however, because there is
did not satisfy that obligation here, and its failure
no indication that the jury made the same
to do so prejudiced defendant Tyson Foods at trial.
assumption. Indeed, the most reasonable guess is
The majority reaches a contrary conclusion by
that the jury did not find that employees in
redefining class-action requirements and devising
different departments donned and doffed for
an unsound special evidentiary rule for cases
identical amounts of time. After all, the plaintiffs'
under the Fair Labor Standards Act of 1938
own expert indicated that employees in different
(FLSA), 29 U.S.C. § 201 et seq. I respectfully
departments donned and doffed for different
dissent.
1053 amounts of time.*1053 Given this difficulty, it
remains to be seen whether the jury verdict can I
stand. The Court observes in dicta that the
"The class action is an exception to the usual rule
problem of distributing the damages award
that litigation is conducted by and on behalf of the
"appears to be one of petitioner's own making."
individual named parties only." Comcast Corp. v.
Ante, at 1050. Perhaps. But Tyson's insistence on a
Behrend, 569 U.S. ––––, ––––, 133 S.Ct. 1426,
lump-sum jury award cannot overcome the
1432, 185 L.Ed.2d 515 (2013) (internal quotation
limitations placed on the federal courts by the
marks omitted). Plaintiffs thus "must affirmatively
Constitution. Article III does not give federal
demonstrate [their] compliance" with Rule 23.
courts the power to order relief to any uninjured
Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338,
plaintiff, class action or not. The Judiciary's role is
350, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011).
limited "to provid[ing] relief to claimants, in
Where, as here, a putative class seeks money
individual or class actions, who have suffered, or

12
 Tyson Foods, Inc. v. Bouaphakeo 577 U.S. 442 (2016)

damages, plaintiffs also must satisfy the workers overtime for donning and doffing
"demanding" standard of predominance, Comcast, protective gear, in violation of the Iowa Wage
supra, at ––––, 133 S.Ct., at 1432, by proving that Payment Collection Law, Iowa Code § 91A.3
"questions of law or fact common to class (2013). This Iowa law mirrors the FLSA.1 An
members predominate over any questions employer violates these laws if it employs
affecting only individual members." Fed. Rule someone "for a workweek longer than forty hours"
Civ. Proc. 23(b)(3). 469 and fails *469 to adequately compensate him for
the overtime. 29 U.S.C. § 207(a)(1). Here, the
District courts must also ensure continued
plaintiffs could establish Tyson's liability to all
compliance with Rule 23 throughout the case.
class members only if: (1) the donning and doffing
When a district court erroneously certifies a class,
at issue is compensable work; (2) all employees
468 then holds a trial, reversal is *468 required when
worked over 40 hours, including donning and
the record shows that improper certification
doffing time; and (3) Tyson failed to compensate
prejudiced the defendant. And an incorrect class
each employee for all overtime.
certification decision almost inevitably prejudices
the defendant. When a district court allows class 1 The plaintiffs also brought a collective

plaintiffs to prove an individualized issue with action under the FLSA. Because the jury
classwide evidence, the court relieves them of verdict combined the two actions,

their burden to prove each element of their claim deficiencies in the class action require

for each class member and impedes the reversal of the entire judgment.

defendant's efforts to mount an effective defense. The District Court should have begun its
Here, the District Court misconstrued the elements predominance inquiry by determining which
of the plaintiffs' claims. And it failed to recognize elements of the plaintiffs' claims present common
1054 that one critical element *1054 of those claims or individual issues, and assessed whether
raised an individual issue that would predominate individual issues would overwhelm common ones.
over any common issues. The court therefore did See Halliburton Co. v. Erica P. John Fund, Inc.,
not ask whether that individual issue was 573 U.S. ––––, ––––, 134 S.Ct. 2398, 2413–2414,
susceptible to common proof. That error, at the 189 L.Ed.2d 339 (2014) ; Erica P. John Fund, Inc.
class certification stage, then prejudiced Tyson at v. Halliburton Co., 563 U.S. 804, 809, 131 S.Ct.
trial. It was only at trial that the plaintiffs 2179, 180 L.Ed.2d 24 (2011). The plaintiffs'
introduced the critical evidence at issue in this claims here had one element that was clearly
case. They introduced, as representative of the individualized: whether each employee worked
class, a study by the plaintiffs' expert, Dr. Kenneth over 40 hours without receiving full overtime pay.
Mericle. The District Court still declined to The amount of time that employees spent on
consider whether this evidence was appropriate donning and doffing varied by person because
common proof—even though the study showed individuals take different amounts of time to don
wide variations among class members on an and doff the same gear, and their gear varied. This
important individual issue. These errors prejudiced issue was critical to determining Tyson's liability
Tyson and warrant reversal. because some employees would not have worked
over 40 hours per week without counting time
A spent on donning and doffing. The critical issue
The District Court erred at the class certification for class certification thus was whether the
stage by holding that the plaintiffs satisfied Rule individualized nature of employees' donning and
23's predominance requirement. The plaintiffs doffing times defeated predominance.
alleged that Tyson failed to adequately pay

13
 Tyson Foods, Inc. v. Bouaphakeo 577 U.S. 442 (2016)

The District Court, however, certified a 3,344– Mericle's evidence showed that employees'
member class without acknowledging the donning and doffing times varied materially.
significance of this individual issue, let alone Mericle's evidence thus confirmed the
addressing whether it was susceptible to common inappropriateness of class treatment.
proof. The court acknowledged that "[i]ndividual
Mericle used about 53 employees per donning- or
questions may exist" and that Tyson was objecting
doffing-related activity to extrapolate averages for
to being "forced to defend against un common
the 3,344–person class. By averaging the times
evidence" because the plaintiffs had no common
that sample employees spent per activity, Mericle
evidence establishing what gear all employees
estimated that all cut or retrim department
wore "or how long [they] spend donning and
employees spent 18 minutes per day on
doffing their [gear]." 564 F.Supp.2d 870, 900, 909
uncompensated activities (including donning and
(N.D.Iowa 2008). But, in the District Court's view,
doffing), while kill department employees
common issues predominated because the
averaged 21.25 minutes.
plaintiffs could establish classwide liability just by
1055 showing that Tyson *1055 was not paying any Mericle's data, however, revealed material
470 employee *470 for the time it took to don or doff variances in the amount of time that individual
basic gear. Id., at 909 ; see id., at 900, 904, 905 471 employees spent on the same *471 activities. Cut
(similar). and retrim employees took between 0.583 minutes
and over 10 minutes to don preshift equipment at
The District Court thus did not give proper
their lockers. Postshift doffing took one employee
consideration to the significance of variable
less than two minutes, and another over nine
donning and doffing times. Establishing an FLSA
minutes. Kill department employees had similar
violation across the entire class was impossible
variances. No two employees performed the same
without evidence that each employee would have
activity in the same amount of time, and Mericle
worked over 40 hours per week if donning and
observed "a lot of variation within the activity."
doffing time were included. But the District Court
App. 387.
did not fully appreciate that this was a critical
individual issue that defined Tyson's liability, and The plaintiffs' trial evidence also showed that
it did not analyze, in any way, whether this issue variances in the amount of time that employees
was susceptible to common proof. As a result, the spent on donning and doffing activities
District Court erred when it certified the class. significantly affected the number of class
members who could assert overtime claims. The
B
plaintiffs' other expert, Dr. Liesl Fox, added
It was only later at trial that the plaintiffs Mericle's average times to individual employees'
introduced the critical evidence that they claimed timesheets to determine which class members had
could establish all employees' donning and doffing overtime claims. She discovered that 212 of the
times on a classwide basis. This evidence came 3,344 class members had no claims at all because
from the plaintiffs' expert, Dr. Mericle, who they had not worked over 40 hours per week. If
studied how long certain Tyson employees took to Mericle's averages even slightly overestimated
don and doff various gear. This was the "most average donning and doffing times, another 282
important" evidence at trial. Ante, at 1043 – 1044. class members would have no overtime claims. If
Without it, the plaintiffs almost certainly could not average donning or doffing times dropped from
have obtained a classwide verdict. But rather than 18–21 minutes to 15 minutes, Fox stated, another
showing that employees' donning and doffing 110 employees had no overtime claims. According
times were susceptible to classwide proof, to Fox, incremental changes to donning and

14
 Tyson Foods, Inc. v. Bouaphakeo 577 U.S. 442 (2016)

doffing times mattered so much that her estimated Before defendants can be forced to defend against
damages figure ($6.6 million) would be a class action, courts must be sure that Rule 23's
meaningless if the jury discounted Mericle's data criteria are met. The District Court's failure to do
at all. Yet the jury ultimately rejected that damages so warrants reversal.
figure—seemingly disagreeing that Mericle's
II
average times reflected the amount of time that
every class member spent donning and doffing. The majority reaches a contrary result by erring in
1056 *1056 Because the District Court did not evaluate three significant ways. First, the majority alters the
Mericle's and Fox's evidence in its initial class predominance inquiry so that important individual
certification decision, it should have revisited issues are less likely to defeat class certification.
certification when faced with this evidence at trial. Next, the majority creates a special, relaxed rule
It declined to do so even after Tyson objected to authorizing plaintiffs to use otherwise inadequate
using this evidence to establish the amount of time representative evidence in FLSA-based cases by
all class members spent donning and doffing. See 473 misreading *473 Anderson v. Mt. Clemens Pottery
2011 WL 3793962 (N.D.Iowa, Aug. 25, 2011) Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515
472 (rejecting decertification *472 motion); 2012 WL (1946). Finally, the majority points to Tyson's
4471119 (N.D.Iowa, Sept. 26, 2012) (summarily litigation strategy and purported differences from
denying post-trial decertification). The court thus prior Rule 23 precedents. None of these
never made findings or analyzed whether, under justifications withstands scrutiny.
Rule 23(b)(3), Mericle's study could be used as
A
common proof of an individual issue that would
otherwise preclude class treatment. The majority begins by redefining the
predominance standard. According to the majority,
The District Court's jury instructions did not cure
if some " ‘central issues' " present common
this deficiency. No instruction could remedy a
questions, " ‘the action may be considered proper
court's failure to address why an individual issue
under Rule 23(b)(3) even though other important
was susceptible to common proof. In any event,
matters will have to be tried separately, such as
the court instructed the jury that "expert
damages or some affirmative defenses peculiar to
testimony"—like Mericle's—should get "as much
some individual class members.’ " Ante, at 1045
weight as you think it deserves." App. 471. The
(quoting, 7AA C. Wright, A. Miller, & M. Kane,
court also let the jury rely on representative
Federal Practice & Procedure § 1778, pp. 123–124
evidence to establish each class member's claim
(3d ed. 2005; footnotes omitted) ).
even if the jury believed that employees' donning
and doffing times varied considerably. See ibid. We recently—and correctly—held the opposite. In
Comcast, we deemed the lack of a common
In sum, the plaintiffs at no time had to justify
methodology for proving damages fatal to
whether the variability among class members here
predominance because "[q]uestions of individual
was too much for representative evidence to fill
damage calculations will inevitably overwhelm
the gap with common proof. Nor did the District
1057 questions common to the class." *1057 569 U.S., at
Court address whether Mericle's study—which
––––, 133 S.Ct., at 1433.2 If, as the majority
showed significant variability in how much time
employees spent on donning and doffing—was states, this case presents "no occasion" to
permissible common proof. These errors created announce "broad and categorical rules governing
an unacceptable risk that Tyson would be held the use of representative and statistical evidence in
liable to a large class without adequate proof that
each individual class member was owed overtime.

15
 Tyson Foods, Inc. v. Bouaphakeo 577 U.S. 442 (2016)

class actions," ante, at 1049, it should most evidence as common proof. See ante, at 1046 –
certainly not present an occasion to transform 1048. In the majority's view, Mt. Clemens
basic aspects of the predominance inquiry. established that (1) if the employer did not record
2 The majority relies on the same treatise
the time that employees spent on compensable
work, employees can use representative evidence
citations that the Comcast dissent invoked
to argue that individualized damages
to establish the employer's liability, ante, at 1046 –
calculations should never defeat 1047; and (2) employees can use "the experiences
predominance. 569 U.S., at –––– – ––––, of a subset of employees" to establish "the
133 S.Ct., at 1436–1437 (opinion of experiences of all of them" if "each employee
BREYER, J.). Since then, these treatises worked in the same facility, did similar work[,]
have acknowledged the tension between and was paid under the same policy," ante, at
their views of predominance and Comcast . 1048.
See 7AA C. Wright, A. Miller, & M. Kane,
Federal Practice and Procedure, § 1778, p. The majority's reliance on Mt. Clemens is
37 (3d ed. Supp. 2015) ; 2 W. Rubenstein, questionable given that decision's shaky
Newberg on Class Actions § 4:54, p. 21 foundations. Seventy years ago, Mt. Clemens
(5th ed. Supp. June 2015). construed the FLSA broadly to vindicate the
Court's understanding of the FLSA's "remedial"
B
purposes. 328 U.S., at 687, 66 S.Ct. 1187. Within
The majority further errs in concluding that the a year, Congress rejected that interpretation.
representative evidence here showed that class Citing the "emergency" this Court had created by
474 members' claims *474 were susceptible to common spurring "excessive and needless litigation,"
proof. See ante, at 1045 – 1049. As the majority Congress repudiated this Court's understanding of
observes, representative evidence can be used to what the FLSA meant by "work" and the
prove an individual issue on a classwide basis if 475 "workweek" and limited *475 employees' ability to

each class member, in an individual action, could sue collectively. 29 U.S.C. §§ 251(a) - (b) ; see
rely on that evidence to prove his individual claim. integrity staffing solutions, inc. v. busk, 574 U.S.
Ante, at 1046 – 1047. But that premise should ––––, ––––, 135 S.Ct. 513, 516–517, 190 L.Ed.2d
doom the plaintiffs' case. Even testifying class 410 (2014) (noting repudiation in the Portal–to–
members would seem unable to use Mericle's Portal Act of 1947); Hoffmann–La Roche Inc. v.
averages. For instance, Mericle's study estimated Sperling, 493 U.S. 165, 173, 110 S.Ct. 482, 107
that kill department employees took an average L.Ed.2d 480 (1989) (noting repudiation of
6.4 minutes to don equipment at their lockers representative actions). Since then, this Court has
before their shift—but employee Donald Brown decided many FLSA cases, but has never relied on
testified that this activity took him around 2 1058 Mt. Clemens to do so.3 *1058 Putting these

minutes. Others also testified to donning and concerns aside, the majority today goes beyond
doffing times that diverged markedly from what Mt. Clemens held. First, Mt. Clemens does
Mericle's estimates. So Mericle's study could not not hold that employees can use representative
sustain a jury verdict in favor of these plaintiffs, evidence in FLSA cases to prove an otherwise
had they brought individual suits. uncertain element of liability. Mt. Clemens
involved an employer's alleged failure to pay
According to the majority, this disparity between
employees for time they spent walking to and
average times and individual times poses no
from their work spaces and on preshift preparatory
problem because Anderson v. Mt. Clemens Pottery
activities. See 328 U.S., at 684–685, 66 S.Ct.
Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515,
1187. The Court held that the FLSA required
allows plaintiffs to use such representative

16
 Tyson Foods, Inc. v. Bouaphakeo 577 U.S. 442 (2016)

employers to compensate employees for those damages"). Mt. Clemens does not justify the use of
activities. Id., at 690–692, 66 S.Ct. 1187 representative evidence in this case, where Tyson's
(overruled by 29 U.S.C. §§ 252, 254). The liability to many class members was uncertain.
employer was thus presumptively liable to all
Second, the majority misreads Mt. Clemens as
employees because they all claimed to work 40
"confirm[ing]" that when employees "worked in
hours per week. See Record in Mt. Clemens, O.T.
the same facility, did similar work and w[ere] paid
1945, No. 342 (Record), pp. 10–11 (complaint).
under the same policy," representative evidence
All additional uncompensated work was
can prove all of their claims. Ante, at 1048. Mt.
necessarily unpaid overtime. That explains why
Clemens said nothing about whether or why the
the Court "assum[ed] that the employee has
employees there shared sufficient similarities for
proved that he has performed work and has not
their claims to be susceptible to common proof.
been paid in accordance with the statute." 328
The Mt. Clemens plaintiffs were the local union
U.S., at 688, 66 S.Ct. 1187.
and seven employees. See 328 U.S., at 684, 66
3 THE CHIEF JUSTICE believes that the
S.Ct. 1187. They brought a representative action, a
majority does not actually depend upon Mt. type of collective action that allowed employees to
Clemens as a special evidentiary rule, and designate a union to pursue their claims for them.
instead applies "the same standard of proof
See § 16(b), 52 Stat. 1069; Record 7 (complaint).
that would apply in any case." Ante, at
Some 300 employees did so. See Mt. Clemens
1051. That interpretation is difficult to
Pottery Co. v. Anderson, 149 F.2d, 461 (C.A.6
credit given that the majority never
1945) ; Record 33–41. The District Court did not
explains why Dr. Mericle's representative
make findings about what made these employees
evidence could have sustained a jury
finding in favor of any individual
similar, instead reasoning that the FLSA's broad
employee in an individual case, and instead objectives supported a liberal approach to
devotes several paragraphs to the allowing class suits. Record 29–32 (June 13, 1941,
proposition that "[t]his Court's decision in order). This Court also said nothing about whether
[Mt. Clemens ] explains why Dr. Mericle's the employees suffered the same harm in the same
sample was permissible in the manner; that issue was not before it. In Mt.
circumstances of this case." Ante, at 1046 – Clemens ' aftermath, however, Congress
1047; see id., at 1046 – 1047. eliminated representative actions, like the one in
1059 Mt. Clemens, *1059 that required too few
Mt. Clemens also rejected the notion that
similarities among plaintiffs and allowed plaintiffs
employees who had already established the
"not themselves possessing claims" to sue.
476 employer's liability had to prove *476 damages
Hoffman–La Roche, supra, at 173, 110 S.Ct. 482.
using precise, employee-specific records. Id., at
Mt. Clemens thus offers no guidance about what
687, 66 S.Ct. 1187. Rather, if the employer failed
477 degree of *477 similarity among employees
to keep records but its liability was certain,
suffices for representative evidence to establish all
employees could use evidence that "show[s] the
employees' experiences.
amount and extent of that work as a matter of just
and reasonable inference." Ibid. The Court, In any event, Mt. Clemens did not accept that the
however, limited this holding to instances where representative evidence there would be probative
the employer's FLSA violation was "certain," as in even were the employees sufficiently similar. All
Mt. Clemens itself. Id., at 688, 66 S.Ct. 1187 ; see Mt. Clemens decided was that the lack of precise
ibid. (inference permissible "as to the extent of the data about the amount of time each employee
worked was not fatal to their case. 328 U.S., at
686–687, 66 S.Ct. 1187. The Court then remanded

17
 Tyson Foods, Inc. v. Bouaphakeo 577 U.S. 442 (2016)

the case, leaving the lower courts to "draw majority thus puts employers to an untenable
whatever reasonable inferences can be drawn from choice. They must either track any time that might
the employees' evidence," if any. Id., at 693–694, be the subject of an innovative lawsuit, or they
66 S.Ct. 1187.4 Mt. Clemens therefore does not must defend class actions against representative
support the majority's conclusion that evidence that unfairly homogenizes an individual
representative evidence can prove thousands of issue. Either way, the majority's misinterpretation
employees' FLSA claims if they share a facility, of Mt. Clemens will profoundly affect future
job functions, and pay policies. See ante, at 1048 FLSA-based class actions—which have already
– 1049. increased dramatically in recent years. Erichson,
CAFA's Impact On Class Action Lawyers, 156 U.
4 If anything, Mt. Clemens suggests that the
Pa. L. Rev. 1593, 1617 (2008).
representative evidence here is
impermissible. The Court affirmed that the C
District Court's proposed "formula of
compensation," calculated based on The majority makes several other arguments why
estimated average times it derived from Mericle's study was adequate common proof of all
employees' representative testimony, was class members' experiences. None has merit.
impermissible. 328 U.S., at 689, 66 S.Ct.
First, the majority contends that, because Tyson's
1187 ; see 149 F.2d, at 465 ("It does not
suffice for the employee to base his right to
trial defense—that Mericle's study was
recover on a mere estimated average of unrepresentative or inaccurate—was "itself
overtime worked."). common," Tyson was "not deprive[d] ... of its
--------
ability to litigate individual defenses." Ante, at
1047. But looking to what defenses remained
By focusing on similarities irrelevant to whether available is an unsound way to gauge whether the
employees spend variable times on the task for 1060 class-action device prevented the defendant *1060
which they are allegedly undercompensated, the from mounting individualized defenses. That
majority would allow representative evidence to Tyson was able to mount only a common defense
establish classwide liability even where much of confirms its disadvantage. Testifying class
the class might not have overtime claims at all. members attested to spending less time on
Whether employees work in one plant or many, donning and doffing than Mericle's averages
have similar job functions, or are paid at the same would suggest. Had Tyson been able to cross-
rate has nothing to do with how fast they walk, examine more than four of them, it may have
don, or doff—the key variables here for FLSA incurred far less liability. See supra, at 1057 –
liability. 1058.

The majority suggests that Mt. Clemens ' Second, the majority argues that Tyson's failure to
evidentiary rule is limited to cases where the challenge Mericle's testimony under Daubert v.
employer breaches its obligation to keep records Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
of employees' compensable work. See ante, at 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), left to
1046 – 1047. But that limitation is illusory. FLSA the jury any remaining questions about the value
cases often involve allegations that a particular of this evidence. Ante, at 1048 – 1049. But
activity is uncompensated work. Just last Term, Comcast rejected this argument. Failing to
478 we rejected class-action plaintiffs *478 ' theory that challenge evidence under Daubert precludes
waiting in an antitheft security screening line defendants from "argu[ing] that [the] testimony
constitutes work. See Integrity Staffing Solutions, 479 was not admissible *479 ," but it does not preclude
Inc., 574 U.S. at ––––, 135 S.Ct., at 516. The defendants from "argu[ing] that the evidence

18
 Tyson Foods, Inc. v. Bouaphakeo 577 U.S. 442 (2016)

failed to show that the case is susceptible to The plaintiffs' reliance on Mericle's study fails for
awarding damages on a class-wide basis." the same reasons. Just as individual managers
Comcast, 569 U.S., at ––––, n. 4, 133 S.Ct., at inherently make discretionary decisions
1432, n. 4 (internal quotation marks omitted). differently, so too do individual employees
inherently spend different amounts of time
Finally, the majority's attempts to distinguish this
donning and doffing. And, just as 120 employee
case from Wal–Mart are unavailing. See ante, at
anecdotes could not establish that all 1.5 million
1047 – 1049. Wal–Mart involved a nationwide
class members faced discrimination, neither can
Title VII class action alleging that Wal–Mart's
Mericle's study establish that all 3,344 class
policy of delegating employment decisions to
members spent the same amount of time donning
individual store managers let managers exercise
480 and doffing. *480 Like the 120 Wal–Mart
their discretion in a discriminatory manner. See
anecdotes, Mericle's study—which used about 57
564 U.S., at 342, 131 S.Ct. 2541. We held that
employees per activity to extrapolate times for
discretionary decisionmaking could not be a
3,344—falls short of the 1:8 ratio this Court
common policy uniting all class members' claims
deems "significant" to the probative value of
because managers presumptively exercise their
representative evidence. See id., at 358, 131 S.Ct.
discretion in an individualized manner. See id., at
2541.
355–356, 131 S.Ct. 2541. Some may rely on
performance-based criteria; others may use tests; III
yet others might intentionally discriminate. Ibid.
I agree with the majority's conclusion in Part II–B
Because of this variability, "demonstrating the
that we should not address whether a class action
invalidity of one manager's use of discretion will
can be maintained if a class contains uninjured
do nothing to demonstrate the invalidity of
members. Given that conclusion, however, I am
another's." Ibid.
perplexed by the majority's readiness to suggest,
Moreover, the Wal–Mart plaintiffs' representative in dicta, that Tyson's opposition to bifurcating the
evidence—120 employee anecdotes—did not 1061 proceedings might be invited *1061 error. Ante, at
make this individualized issue susceptible to 1050. I see no reason to opine on this issue.
common proof. Id., at 358, 131 S.Ct. 2541. Using
***
120 anecdotes to represent the experiences of 1.5
million class members was too far below the 1:8 I respectfully dissent.
ratio of anecdotes to class members that our prior
cases accepted. Ibid. Thus, this representative
evidence was "too weak to raise any inference that
all the individual, discretionary personnel
decisions are discriminatory." Ibid .

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