throbber
(Slip Opinion)
`
`OCTOBER TERM, 2015
`
`Syllabus
`
`1
`
`NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`being done in connection with this case, at the time the opinion is issued.
`The syllabus constitutes no part of the opinion of the Court but has been
`prepared by the Reporter of Decisions for the convenience of the reader.
`See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
`SUPREME COURT OF THE UNITED STATES
`
`Syllabus
`
`TYSON FOODS, INC. v. BOUAPHAKEO ET AL.,
`INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY
`SITUATED
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`THE EIGHTH CIRCUIT
`No. 14–1146. Argued November 10, 2015—Decided March 22, 2016
`Respondents, employees of petitioner Tyson Foods, work in the kill, cut,
`and retrim departments of a pork processing plant in Iowa. Re-
`spondents’ work requires them to wear protective gear, but the exact
`composition of the gear depends on the tasks a worker performs on a
`given day. Petitioner compensated some, but not all, employees for
`this donning and doffing, and did not record the time each employee
`spent on those activities. Respondents filed suit, alleging that the
`donning and doffing were integral and indispensable to their hazard-
`ous work and that petitioner’s policy not to pay for those activities
`denied them overtime compensation required by the Fair Labor
`Standards Act of 1938 (FLSA). Respondents also raised a claim un-
`der an Iowa wage law. They sought certification of their state claims
`as a class action under Federal Rule of Civil Procedure 23 and certifi-
`cation of their FLSA claims as a “collective action.” See 29 U. S. C.
`§216. Petitioner objected to certification of both classes, arguing that,
`because of the variance in protective gear each employee wore, the
`employees’ claims were not sufficiently similar to be resolved on a
`classwide basis. The District Court concluded that common ques-
`tions, such as whether donning and doffing protective gear was com-
`pensable under the FLSA, were susceptible to classwide resolution
`even if not all of the workers wore the same gear. To recover for a
`violation of the FLSA’s overtime provision, the employees had to
`show that they each worked more than 40 hours a week, inclusive of
`the time spent donning and doffing. Because petitioner failed to keep
`records of this time, the employees primarily relied on a study per-
`formed by an industrial relations expert, Dr. Kenneth Mericle. Mer-
`
`
`
`

`
`2
`
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`TYSON FOODS, INC. v. BOUAPHAKEO
`
`Syllabus
`icle conducted videotaped observations analyzing how long various
`donning and doffing activities took, and then averaged the time taken
`to produce an estimate of 18 minutes a day for the cut and retrim de-
`partments and 21.25 minutes for the kill department. These esti-
`mates were then added to the timesheets of each employee to ascer-
`tain which class members worked more than 40 hours a week and the
`value of classwide recovery. Petitioner argued that the varying
`amounts of time it took employees to don and doff different protective
`gear made reliance on Mericle’s sample improper, and that its use
`would lead to recovery for individuals who, in fact, had not worked
`the requisite 40 hours. The jury awarded the class about $2.9 million
`in unpaid wages. The award has not yet been disbursed to individual
`employees. The Eighth Circuit affirmed the judgment and the
`award.
`Held: The District Court did not err in certifying and maintaining the
`class. Pp. 8–17.
`
`(a) Before certifying a class under Rule 23(b)(3), a district court
`must find that “questions of law or fact common to class members
`predominate over any questions affecting only individual members.”
`The parties agree that the most significant question common to the
`class is whether donning and doffing protective gear is compensable
`under the FLSA. Petitioner claims, however, that individual inquir-
`ies into the time each worker spent donning and doffing predominate
`over this common question. Respondents argue that individual in-
`quiries are unnecessary because it can be assumed each employee
`donned and doffed for the same average time observed in Mericle’s
`sample.
` Whether and when statistical evidence such as Mericle’s sample
`can be used to establish classwide liability depends on the purpose
`for which the evidence is being introduced and on “the elements of
`the underlying cause of action,” Erica P. John Fund, Inc. v. Hallibur-
`ton Co., 563 U.S. 804, 809. Because a representative sample may be
`the only feasible way to establish liability, it cannot be deemed im-
`proper merely because the claim is brought on behalf of a class. Re-
`spondents can show that Mericle’s sample is a permissible means of
`establishing hours worked in a class action by showing that each
`class member could have relied on that sample to establish liability
`had each brought an individual action.
` Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680, shows why
`Mericle’s sample was permissible in the circumstances of this case.
`There, where an employer violated its statutory duty to keep proper
`records, the Court concluded the employees could meet their burden
`by proving that they in fact “performed work for which [they were]
`improperly compensated and . . . produc[ing] sufficient evidence to
`
`
`
`

`
`
`
`3
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`Cite as: 577 U. S. ____ (2016)
`
`Syllabus
`show the amount and extent of that work as a matter of just and rea-
`sonable inference.” Id., at 687. Here, similarly, respondents sought
`to introduce a representative sample to fill an evidentiary gap creat-
`ed by the employer’s failure to keep adequate records. Had the em-
`ployees proceeded with individual lawsuits, each employee likely
`would have had to introduce Mericle’s study to prove the hours he or
`she worked. The representative evidence was a permissible means of
`showing individual hours worked.
` This holding is in accord with Wal-Mart Stores, Inc. v. Dukes, 564
`U. S. 338, where the underlying question was, as here, whether the
`sample at issue could have been used to establish liability in an indi-
`vidual action. There, the employees were not similarly situated, so
`none of them could have prevailed in an individual suit by relying on
`depositions detailing the ways in which other employees were dis-
`criminated against by their particular store managers. In contrast,
`the employees here, who worked in the same facility, did similar
`work, and were paid under the same policy, could have introduced
`Mericle’s study in a series of individual suits.
` This case presents no occasion for adoption of broad and categorical
`rules governing the use of representative and statistical evidence in
`class actions. Rather, the ability to use a representative sample to
`establish classwide liability will depend on the purpose for which the
`sample is being introduced and on the underlying cause of action. In
`FLSA actions, inferring the hours an employee has worked from a
`study such as Mericle’s has been permitted by the Court so long as
`the study is otherwise admissible. Mt. Clemens, supra, at 687.
`Pp. 8–15.
`
`(b) Petitioner contends that respondents are required to demon-
`strate that uninjured class members will not recover damages here.
`That question is not yet fairly presented by this case, because the
`damages award has not yet been disbursed and the record does not
`indicate how it will be disbursed. Petitioner may raise a challenge to
`the allocation method when the case returns to the District Court for
`disbursal of the award. Pp. 15–17.
`765 F. 3d 791, affirmed and remanded.
` KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
`C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined.
`ROBERTS, C. J., filed a concurring opinion, in which ALITO, J., joined as
`to Part II. THOMAS, J., filed a dissenting opinion, in which ALITO, J.,
`joined.
`
`
`
`

`
`
`
`Cite as: 577 U. S. ____ (2016)
`
`Opinion of the Court
`
`1
`
`NOTICE: This opinion is subject to formal revision before publication in the
`preliminary print of the United States Reports. Readers are requested to
`notify the Reporter of Decisions, Supreme Court of the United States, Wash-
`ington, D. C. 20543, of any typographical or other formal errors, in order
`that corrections may be made before the preliminary print goes to press.
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`No. 14–1146
`_________________
`TYSON FOODS, INC., PETITIONER v. PEG
`BOUAPHAKEO, ET AL., INDIVIDUALLY AND ON BEHALF
`OF ALL OTHERS SIMILARLY SITUATED
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`APPEALS FOR THE EIGHTH CIRCUIT
`[March 22, 2016]
` JUSTICE KENNEDY delivered the opinion of the Court.
` Following a jury trial, a class of employees recovered
`$2.9 million in compensatory damages from their employer
`for a violation of the Fair Labor Standards Act of 1938
`(FLSA), 52 Stat. 1060, as amended, 29 U. S. C. §201 et seq.
`The employees’ primary grievance was that they did not
`receive statutorily mandated overtime pay for time spent
`donning and doffing protective equipment.
` The employer seeks to reverse the judgment. It makes
`two arguments. Both relate to whether it was proper to
`permit the employees to pursue their claims as a class.
`First, the employer argues the class should not have been
`certified because the primary method of proving injury
`assumed each employee spent the same time donning and
`doffing protective gear, even though differences in the
`composition of that gear may have meant that, in fact,
`employees took different amounts of time to don and doff.
`Second, the employer argues certification was improper
`because the damages awarded to the class may be distrib-
`uted to some persons who did not work any uncompen-
`
`

`
`2
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`TYSON FOODS, INC. v. BOUAPHAKEO
`
`Opinion of the Court
`
`sated overtime.
` The Court of Appeals for the Eighth Circuit concluded
`there was no error in the District Court’s decision to cer-
`tify and maintain the class. This Court granted certiorari.
`576 U. S. ___ (2015).
`
`I
` Respondents are employees at petitioner Tyson Foods’
`pork processing plant in Storm Lake, Iowa. They work in
`the plant’s kill, cut, and retrim departments, where hogs
`are slaughtered, trimmed, and prepared for shipment.
`Grueling and dangerous, the work requires employees to
`wear certain protective gear. The exact composition of the
`gear depends on the tasks a worker performs on a given
`day.
` Until 1998, employees at the plant were paid under a
`system called “gang-time.” This compensated them only
`for time spent at their workstations, not for the time
`required to put on and take off their protective gear. In
`response to a federal-court injunction, and a Department
`of Labor suit to enforce that injunction, Tyson in 1998
`began to pay all its employees for an additional four
`minutes a day for what it called “K-code time.” The
`4-minute period was the amount of time Tyson estimated
`employees needed to don and doff their gear. In 2007,
`Tyson stopped paying K-code time uniformly to all em-
`ployees. Instead, it compensated some employees for
`between four and eight minutes but paid others nothing
`beyond their gang-time wages. At no point did Tyson
`record the time each employee spent donning and doffing.
` Unsatisfied by these changes, respondents filed suit in
`the United States District Court for the Northern District
`of Iowa, alleging violations of the FLSA. The FLSA re-
`quires that a covered employee who works more than 40
`hours a week receive compensation for excess time worked
`“at a rate not less than one and one-half times the regular
`
`

`
`
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`3
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`Cite as: 577 U. S. ____ (2016)
`
`Opinion of the Court
`rate at which he is employed.” 29 U. S. C. §207(a). In
`1947, nine years after the FLSA was first enacted, Con-
`gress passed the Portal-to-Portal Act, which clarified that
`compensable work does not include time spent walking to
`and from the employee’s workstation or other “preliminary
`or postliminary activities.” §254(d). The FLSA, however,
`still requires employers to pay employees for activities
`“integral and indispensable” to their regular work, even if
`those activities do not occur at the employee’s workstation.
`Steiner v. Mitchell, 350 U. S. 247, 249, 255 (1956). The
`FLSA also requires an employer to “make, keep, and
`preserve . . . records of the persons employed by him and
`of the wages, hours, and other conditions and practices of
`employment.” §211(c).
` In their complaint, respondents alleged that donning
`and doffing protective gear were integral and indispensa-
`ble to their hazardous work and that petitioner’s policy not
`to pay for those activities denied them overtime compensa-
`tion required by the FLSA. Respondents also raised a
`claim under the Iowa Wage Payment Collection Law. This
`statute provides for recovery under state law when an
`employer fails to pay its employees “all wages due,” which
`includes FLSA-mandated overtime. Iowa Code §91A.3
`(2013); cf. Anthony v. State, 632 N. W. 2d 897, 901–902
`(Iowa 2001).
` Respondents sought certification of their Iowa law
`claims as a class action under Rule 23 of the Federal Rules
`of Civil Procedure. Rule 23 permits one or more individ-
`uals to sue as “representative parties on behalf of all mem-
`bers” of a class if certain preconditions are met. Fed. Rule
`Civ. Proc. 23(a). Respondents also sought certification of
`their federal claims as a “collective action” under 29
`U. S. C. §216. Section 216 is a provision of the FLSA that
`permits employees to sue on behalf of “themselves and
`other employees similarly situated.” §216(b).
` Tyson objected to the certification of both classes on the
`
`

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`4
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`TYSON FOODS, INC. v. BOUAPHAKEO
`
`Opinion of the Court
`same ground. It contended that, because of the variance
`in protective gear each employee wore, the employees’
`claims were not sufficiently similar to be resolved on a
`classwide basis. The District Court rejected that position.
`It concluded there were common questions susceptible to
`classwide resolution, such as “whether the donning and
`doffing of [protective gear] is considered work under the
`FLSA, whether such work is integral and [in]dispensable,
`and whether any compensable work is de minim[i]s.” 564
`F. Supp. 2d 870, 899 (ND Iowa 2008). The District Court
`acknowledged that the workers did not all wear the same
`protective gear, but found that “when the putative plain-
`tiffs are limited to those that are paid via a gang time
`system, there are far more factual similarities than dis-
`similarities.” Id., at 899–900. As a result, the District
`Court certified the following classes:
` “All current and former employees of Tyson’s Storm
`Lake, Iowa, processing facility who have been em-
`ployed at any time from February 7, 2004 [in the case
`of the FLSA collective action and February 7, 2005, in
`the case of the state-law class action], to the present,
`and who are or were paid under a ‘gang time’ compen-
`sation system in the Kill, Cut, or Retrim depart-
`ments.” Id., at 901.
` The only difference in definition between the classes
`was the date at which the class period began. The size of
`the class certified under Rule 23, however, was larger
`than that certified under §216. This is because, while a
`class under Rule 23 includes all unnamed members who
`fall within the class definition, the “sole consequence of
`conditional certification [under §216] is the sending of
`court-approved written notice to employees . . . who in
`turn become parties to a collective action only by filing
`written consent with the court.” Genesis HealthCare Corp.
`v. Symczyk, 569 U. S. ___, ___ (2013) (slip op., at 8). A
`
`

`
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`5
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`Cite as: 577 U. S. ____ (2016)
`
`Opinion of the Court
`total of 444 employees joined the collective action, while
`the Rule 23 class contained 3,344 members.
` The case proceeded to trial before a jury. The parties
`stipulated that the employees were entitled to be paid for
`donning and doffing of certain equipment worn to protect
`from knife cuts. The jury was left to determine whether
`the time spent donning and doffing other protective
`equipment was compensable; whether Tyson was required
`to pay for donning and doffing during meal breaks; and
`the total amount of time spent on work that was not com-
`pensated 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 employ-
`ees were forced to rely on what the parties describe as
`“representative evidence.” This evidence included employee
`testimony, video recordings of donning and doffing at
`the plant, and, most important, a study performed by an
`industrial relations expert, Dr. Kenneth Mericle. Mericle
`conducted 744 videotaped observations and analyzed how
`long various donning and doffing activities took. He then
`averaged the time taken in the observations to produce an
`estimate of 18 minutes a day for the cut and retrim de-
`partments and 21.25 minutes for the kill department.
` Although it had not kept records for time spent donning
`and doffing, Tyson had information regarding each em-
`ployee’s gang-time and K-code time. Using this data, the
`employees’ other expert, Dr. Liesl Fox, was able to esti-
`mate the amount of uncompensated work each employee
`did by adding Mericle’s estimated average donning and
`doffing time to the gang-time each employee worked and
`then subtracting any K-code time. For example, if an
`employee in the kill department had worked 39.125 hours
`of gang-time in a 6-day workweek and had been paid an
`
`

`
`6
`
`
`TYSON FOODS, INC. v. BOUAPHAKEO
`
`Opinion of the Court
`hour of K-code time, the estimated number of compensable
`hours the employee worked would be: 39.125 (individual
`number of gang-time hours worked) + 2.125 (the average
`donning and doffing hours for a 6-day week, based on
`Mericle’s estimated average of 21.25 minutes a day) – 1
`(K-code hours) = 40.25. That would mean the employee
`was being undercompensated by a quarter of an hour of
`overtime a week, in violation of the FLSA. On the other
`hand, if the employee’s records showed only 38 hours of
`gang-time and an hour of K-code time, the calculation
`would be: 38 + 2.125 – 1 = 39.125. Having worked less than
`40 hours, that employee would not be entitled to overtime
`pay and would not have proved an FLSA violation.
` Using this methodology, Fox stated that 212 employees
`did not meet the 40-hour threshold and could not recover.
`The remaining class members, Fox maintained, had po-
`tentially been undercompensated to some degree.
` Respondents proposed to bifurcate proceedings. They
`requested that, first, a trial be conducted on the questions
`whether time spent in donning and doffing was compensa-
`ble work under the FLSA and how long those activities
`took to perform on average; and, second, that Fox’s meth-
`odology be used to determine which employees suffered an
`FLSA violation and how much each was entitled to recover.
`Petitioner insisted upon a single proceeding in which
`damages would be calculated in the aggregate and by the
`jury. The District Court submitted both issues of liability
`and damages to the jury.
` Petitioner did not move for a hearing regarding the
`statistical validity of respondents’ studies under Daubert
`v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579
`(1993), nor did it attempt to discredit the evidence with
`testimony from a rebuttal expert. Instead, as it had done
`in its opposition to class certification, petitioner argued to
`the jury that the varying amounts of time it took employ-
`ees to don and doff different protective equipment made
`
`

`
`
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`7
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`Cite as: 577 U. S. ____ (2016)
`
`Opinion of the Court
`the lawsuit too speculative for classwide recovery. Peti-
`tioner also argued that Mericle’s study overstated the
`average donning and doffing time. The jury was in-
`structed that nontestifying members of the class could
`only recover if the evidence established they “suffered the
`same harm as a result of the same unlawful decision or
`policy.” App. 471–472.
` Fox’s calculations supported an aggregate award of
`approximately $6.7 million in unpaid wages. The jury
`returned a special verdict finding that time spent in don-
`ning and doffing protective gear at the beginning and end
`of the day was compensable work but that time during
`meal breaks was not. The jury more than halved the
`damages recommended by Fox. It awarded the class about
`$2.9 million in unpaid wages. That damages award has
`not yet been disbursed to the individual employees.
` Tyson moved to set aside the jury verdict, arguing,
`among other things, that, in light of the variation in don-
`ning and doffing time, the classes should not have been
`certified. The District Court denied Tyson’s motion, and
`the Court of Appeals for the Eighth Circuit affirmed the
`judgment and the award.
` The Court of Appeals recognized that a verdict for the
`employees “require[d] inference” from their representative
`proof, but it held that “this inference is allowable under
`Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680, 686–
`688 (1946).” 765 F. 3d 791, 797 (2014). The Court of
`Appeals rejected petitioner’s challenge to the sufficiency of
`the evidence for similar reasons, holding that, under the
`facts of this case, the jury could have drawn “a ‘reasonable
`inference’ of class-wide liability.” Id., at 799 (quoting
`Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680, 687
`(1946)). Judge Beam dissented, stating that, in his view,
`the class should not have been certified.
` For the reasons that follow, this Court now affirms.
`
`

`
`8
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`TYSON FOODS, INC. v. BOUAPHAKEO
`
`Opinion of the Court
`II
` Petitioner challenges the class certification of the state-
`law claims and the certification of the FLSA collective
`action. The parties do not dispute that the standard for
`certifying a collective action under the FLSA is no more
`stringent than the standard for certifying a class under
`the Federal Rules of Civil Procedure. This opinion as-
`sumes, without deciding, that this is correct. For purposes
`of this case then, if certification of respondents’ class
`action under the Federal Rules was proper, certification of
`the collective action was proper as well.
` Furthermore, as noted above, Iowa’s Wage Payment
`Collection Law was used in this litigation as a state-law
`mechanism for recovery of FLSA-mandated overtime pay.
`The parties do not dispute that, in order to prove a viola-
`tion of the Iowa statute, the employees had to do no more
`than demonstrate a violation of the FLSA. In this opinion,
`then, no distinction is made between the requirements for
`the class action raising the state-law claims and the collec-
`tive action raising the federal claims.
`A
` Federal Rule of Civil Procedure 23(b)(3) requires that,
`before a class is certified under that subsection, a district
`court must find that “questions of law or fact common to
`class members predominate over any questions affecting
`only individual members.” The “predominance inquiry
`tests whether proposed classes are sufficiently cohesive to
`warrant adjudication by representation.” Amchem Prod-
`ucts, Inc. v. Windsor, 521 U. S. 591, 623 (1997). This calls
`upon courts to give careful scrutiny to the relation be-
`tween common and individual questions in a case. An
`individual question is one where “members of a proposed
`class will need to present evidence that varies from mem-
`ber to member,” while a common question is one where
`“the same evidence will suffice for each member to make a
`
`

`
`
`
`9
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`Cite as: 577 U. S. ____ (2016)
`
`Opinion of the Court
`prima facie showing [or] the issue is susceptible to gener-
`alized, class-wide proof.” 2 W. Rubenstein, Newberg on
`Class Actions §4:50, pp. 196–197 (5th ed. 2012) (internal
`quotation marks omitted). The predominance inquiry
`“asks whether the common, aggregation-enabling, issues
`in the case are more prevalent or important than the non-
`common, aggregation-defeating, individual issues.” Id.,
`§4:49, at 195–196. When “one or more of the central is-
`sues in the action are common to the class and can be said
`to predominate, the action may be considered proper
`under Rule 23(b)(3) even though other important matters
`will have to be tried separately, such as damages or some
`affirmative defenses peculiar to some individual class
`members.” 7AA C. Wright, A. Miller, & M. Kane, Federal
`Practice and Procedure §1778, pp. 123–124 (3d ed. 2005)
`(footnotes omitted).
` Here, the parties do not dispute that there are im-
`portant questions common to all class members, the most
`significant of which is whether time spent donning and
`doffing the required protective gear is compensable work
`under the FLSA. Cf. IBP, Inc. v. Alvarez, 546 U. S. 21
`(2005) (holding that time spent walking between the
`locker room and the production area after donning protec-
`tive gear is compensable work under the FLSA). To be
`entitled to recovery, however, each employee must prove
`that the amount of time spent donning and doffing, when
`added to his or her regular hours, amounted to more than
`40 hours in a given week. Petitioner argues that these
`necessarily person-specific inquiries into individual work
`time predominate over the common questions raised by
`respondents’ claims, making class certification improper.
` Respondents counter that these individual inquiries are
`unnecessary because it can be assumed each employee
`donned and doffed for the same average time observed in
`Mericle’s sample. Whether this inference is permissible
`becomes the central dispute in this case. Petitioner con-
`
`

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`10
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`TYSON FOODS, INC. v. BOUAPHAKEO
`
`Opinion of the Court
`tends that Mericle’s study manufactures predominance by
`assuming away the very differences that make the case
`inappropriate for classwide resolution. Reliance on a
`representative sample, petitioner argues, absolves each
`employee of the responsibility to prove personal injury,
`and thus deprives petitioner of any ability to litigate its
`defenses to individual claims.
` Calling this unfair, petitioner and various of its amici
`maintain that the Court should announce a broad rule
`against the use in class actions of what the parties call
`representative evidence. A categorical exclusion of that
`sort, however, would make little sense. A representative
`or statistical sample, like all evidence, is a means to estab-
`lish or defend against liability. Its permissibility turns not
`on the form a proceeding takes—be it a class or individual
`action—but on the degree to which the evidence is reliable
`in proving or disproving the elements of the relevant cause
`of action. See Fed. Rules Evid. 401, 403, and 702.
` It follows that the Court would reach too far were it to
`establish general rules governing the use of statistical
`evidence, or so-called representative evidence, in all class-
`action cases. Evidence of this type is used in various
`substantive realms of the law. Brief for Complex Litiga-
`tion Law Professors as Amici Curiae 5–9; Brief for Econo-
`mists et al. as Amici Curiae 8–10. Whether and when
`statistical evidence can be used to establish classwide
`liability will depend on the purpose for which the evidence
`is being introduced and on “the elements of the underlying
`cause of action,” Erica P. John Fund, Inc. v. Halliburton
`Co., 563 U. S. 804, 809 (2011).
` In many cases, a representative sample is “the only
`practicable means to collect and present relevant data”
`establishing a defendant’s liability. Manual of Complex
`Litigation §11.493, p. 102 (4th ed. 2004). In a case where
`representative evidence is relevant in proving a plaintiff ’s
`individual claim, that evidence cannot be deemed im-
`
`

`
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`11
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`Cite as: 577 U. S. ____ (2016)
`
`Opinion of the Court
`proper merely because the claim is brought on behalf of a
`class. To so hold would ignore the Rules Enabling Act’s
`pellucid instruction that use of the class device cannot
`“abridge . . . any substantive right.” 28 U. S. C. §2072(b).
` One way for respondents to show, then, that the sample
`relied upon here is a permissible method of proving class-
`wide liability is by showing that each class member could
`have relied on that sample to establish liability if he or she
`had brought an individual action. If the sample could
`have sustained a reasonable jury finding as to hours
`worked in each employee’s individual action, that sample
`is a permissible means of establishing the employees’
`hours worked in a class action.
` This Court’s decision in Anderson v. Mt. Clemens ex-
`plains why Mericle’s sample was permissible in the cir-
`cumstances of this case. In Mt. Clemens, 7 employees and
`their union, seeking to represent over 300 others, brought
`a collective action against their employer for failing to
`compensate them for time spent walking to and from their
`workstations. The variance in walking time among work-
`ers was alleged to be upwards of 10 minutes a day, which
`is roughly consistent with the variances in donning and
`doffing times here. 328 U. S., at 685.
` The Court in Mt. Clemens held that when employers
`violate their statutory duty to keep proper records, and
`employees thereby have no way to establish the time spent
`doing uncompensated work, the “remedial nature of [the
`FLSA] and the great public policy which it embodies . . .
`militate against making” the burden of proving uncom-
`pensated work “an impossible hurdle for the employee.”
`Id., at 687; see also Hoffmann-La Roche Inc. v. Sperling,
`493 U. S. 165, 173 (1989) (“The broad remedial goal of the
`statute should be enforced to the full extent of its terms”).
`Instead of punishing “the employee by denying him any
`recovery on the ground that he is unable to prove the
`
`
`
`

`
`12
`
`
`TYSON FOODS, INC. v. BOUAPHAKEO
`
`Opinion of the Court
` precise extent of uncompensated work,” the Court held
`“an employee has carried out his burden if he proves that
`he has in fact performed work for which he was improper-
`ly compensated and if he produces sufficient evidence to
`show the amount and extent of that work as a matter of
`just and reasonable inference.” 328 U. S., at 687. Under
`these circumstances, “[t]he burden then shifts to the em-
`ployer to come forward with evidence of the precise
`amount of work performed or with evidence to negative
`the reasonableness of the inference to be drawn from the
`employee’s evidence.” Id., at 687–688.
` In this suit, as in Mt. Clemens, respondents sought to
`introduce a representative sample to fill an evidentiary
`gap created by the employer’s failure to keep adequate
`records. If the employees had proceeded with 3,344 indi-
`vidual lawsuits, each employee likely would have had to
`introduce Mericle’s study to prove the hours he or she
`worked. Rather than absolving the employees from prov-
`ing individual injury, the representative evidence here
`was a permissible means of making that very showing.
` Reliance on Mericle’s study did not deprive petitioner of
`its ability to litigate individual defenses. Since there were
`no alternative means for the employees to establish their
`hours worked, petitioner’s primary defense was to show
`that Mericle’s study was unrepresentative or inaccurate.
`That defense is itself common to the claims made by all
`class members. Respondents’ “failure of proof on th[is]
`common question” likely would have ended “the litigation
`and thus [would not have] cause[d] individual questions
`. . . to overwhelm questions common to the class.” Amgen
`Inc. v. Connecticut Retirement Plans and Trust Funds, 568
`U. S. ___, ___ (2013) (slip op., at 11). When, as here, “the
`concern about the proposed class is not that it exhibits
`some fatal dissimilarity but, rather, a fatal similarity—[an
`alleged] failure of proof as to an element of the plaintiffs’
`cause of action—courts should engage that question as a
`
`

`
`
`
`13
`
`Cite as: 577 U. S. ____ (2016)
`
`Opinion of the Court
`matter of summary judgment, not class certification.”
`Nagareda, Class Certification in the Age of Aggregate
`Proof, 84 N. Y. U. L. Rev. 97, 107 (2009).
` Petitioner’s reliance on Wal-Mart Stores, Inc. v. Dukes,
`564 U. S. 338 (2011), is misplaced. Wal-Mart does not
`stand for the broad proposition that a representative
`sample is an

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