The Supreme Court (recently) heard oral arguments in the case of Tyson Foods v. Bouaphakeo. The question before the Court is whether or not a statistical average can be extrapolated to a larger group of dissimilar individuals to calculate damages for all.

The plaintiffs’ lawyers are claiming that current and former workers at the Tyson processing factory in Iowa are owed wages for the time it takes to put on and take off their protective gear. Based on the average dressing time of a sample of workers, the lawyers determined how much in overtime wages all of the class members are owed.

What the plaintiffs’ lawyers are ignoring, however, is the variation in uniform required for the over 400 different jobs at the plant. Taking a sample of employees and applying that average to a dissimilar group of over 3,300 individuals is a flawed assumption.

According to Federal Rule of Civil Procedure 23, members of a class must share a common issue. By applying a statistical average of time it takes to undress to this group of factory workers, the case lumps together those that might be injured with those who did not suffer any injury at all. Some factory workers did not take the 18-21 minutes to put on protective gear and are not owed any overtime payments, while others perhaps took much longer. Should you get more or less money based on how your co-worker performs?

Including individuals who are not harmed at all with those who are is just a tried-and-true way for plaintiffs’ lawyers to increase damages and bring home more bacon for themselves. In fact, the jury in this case originally awarded plaintiffs less than half of the damages requested.

In the Supreme Court wage-hour case of Wal-Mart V. Dukes, the court decertified a class based on a sample of liability by ruling that the class must “resolve an issue that is central to the validity of each one of the claims in one stroke.” Under the Dukes doctrine, the claims against Tyson Foods should also be handled on an individual basis because of their variation.

The ruling on this case could have a significant impact for businesses. If the Court rules in favor of the plaintiffs, there could be a flood tide of similar cases involving tens of thousands of employees. And the plaintiffs’ attorneys would have an incentive to manipulate the sampling, picking individuals who fall on the higher end, in order to drive up damages. If workers at the Tyson’s meat processing plant all get paid the same for dressing for work, you can bet that attorneys will use this to live high on the hog.

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