An overtime case is in the Supreme Court and the issue is what kind of proof is necessary where the employer fails, as it is required to do by law, to keep records of the time the employee worked.  The case is Tyson Foods v. Bouaphakeo; it is a class action where the class members were awarded about $6 million in overtime pay.  The basis for the award was time spent by the workers putting on and taking off (called donning and doffing in the arcane language of overtime pay law) special protective clothing that they had to wear while doing their job.  The time spent putting on and taking off special protective clothing necessary for a job is considered work time for which the employee must be paid.

The issue arises because Tyson Foods, the employer, did not keep track of the time its employees spent putting on and taking off this special protective clothing. At trial the workers proved their damages, at least to the amount of $6 million, based on an expert witness’s statistical inferences from hundreds of videotaped observations of how long it took the workers to get ready. 

The case, according to reports in the New York TimesSupreme Court Hears Case for Tyson Foods Class-Action Lawsuit, and on SCOTUSBlog, Big Test of Class Action -- Maybe Not So Big, may very well turn on application of a precedent from the 1940's, Anderson v. Mt. Clemens Pottery Company, In that case, the Court confronted a similar problem and advised:

[W]here the employer's records are inaccurate or inadequate and the employee cannot offer convincing substitutes a more difficult problem arises. The solution, however, is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer's failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee's labors without paying due compensation as contemplated by the Fair Labor Standards Act. In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.

This is, for all practical purposes, the same as the general rule for proving damages under Kentucky law, a rule that the Kentucky Supreme Court has stated as follows: “it is not necessary to prove the amount of damages with certainty, but only to establish with certainty the existence of damages. Thereafter the jury may determine the fair and reasonable estimate of the particular injury.” UPS v. Rickert, 996 S.W.2d 464, 469 (Ky. 1999).

My own guess based on the media reports mentioned above is that the workers will win the case and get to collect their overtime pay, at long last. It will be a rare win for employees in the Supreme Court these last few years, where a very much business and corporate-oriented majority has tilted repeatedly and heavily toward corporations and against workers.

Tyson Foods is no stranger to unpaid overtime and wages cases: Poultry Workers Settle Unpaid Wages Suit Against Tyson for $32 Million.

Lexington, Kentucky overtime lawyer Robert Abell represents individuals and employees and overtime and wage cases; contact him at 859-254-7076.  

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