Last week, the United States Supreme Court agreed to review Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, which gives the Court an opportunity to consider class certification questions about how damages may be proven in a class action and whether a class can include members who were not injured.

Tyson Foods is a donning and doffing case in which the lower court certified collective and class actions under the Fair Labor Standards Act and state law. The plaintiffs, who were hourly production workers at an Iowa processing facility, alleged that Tyson Foods did not adequately compensate them for time spent donning and doffing protective equipment and walking to and from their work stations. Although Tyson Foods did not record the time actually spent by each employee on these tasks, it added several minutes per shift to each employee’s paycheck to compensate them.

At trial, to prove damages, the workers relied on individual time sheets and compared them to a time study of a sample of employees who were observed donning, doffing, and walking. The jury returned a verdict for the class, which resulted in a $5.8 million judgment.

In its petition to the United States Supreme Court, Tyson Foods argued that class certification was improper because liability and damages were determined using statistical techniques that presumed that all class members were identical to the “average” employee from the time study. Not only were there differences in the amount of time that individual employees actually spent donning, doffing and walking, Tyson argued, but there were also employees who did not spend any uncompensated time on these activities and therefore suffered no injury.

The United States Supreme Court agreed to review the questions: “whether differences among individual class members may be ignored, and a class certified, when plaintiffs use statistical techniques that presume that all class members are identical; and (2) whether a class may be certified that contains hundreds of members who were not injured and have no legal right to damages.” The Court’s decision should clarify whether and how statistical evidence may be used to prove damages in a class action and how classes may be defined. Employers should watch for the Court’s decision as it will impact how wage and hour class and collective actions are litigated.