Legal Briefing: Addressing Tyson Foods’ Dressing Timekeeping Policy

By Mark Kobata

Jun. 10, 2016

Because of the dangerous nature of their work, Tyson Foods Inc. employees are required to wear protective gear on the job. The nature of the protective gear varies, but in all cases the employees were expected to don and doff their protective gear off the clock.

The plaintiff employees filed a class-action lawsuit claiming that Tyson failed to compensate them for time spent donning and doffing the protective gear. Tyson opposed class certification, arguing that the amount of time employees spent donning and doffing varied from employee to employee. Recognizing that the time varied, the trial court allowed the plaintiffs to submit evidence in the form of a statistical study performed by an expert witness regarding the average amount of time needed.

The jury returned a verdict for the plaintiffs and Tyson appealed, claiming that the trial court erred in allowing statistical evidence to prove damages. The U.S. Supreme Court upheld the verdict, finding that the plaintiffs could satisfy their burden of proving damages using statistical evidence. The Supreme Court specifically noted that one of the reasons the plaintiff employees had to use statistical evidence was that Tyson had failed to track the employees’ time spent donning and doffing. Tyson Foods Inc. v. Bouaphakeo, 14-1146 (March 22, 2016).

IMPACT: Employers must be prepared for employees seeking to use statistical survey data to prove damages in class-action litigation. Employers should work to ensure that their timekeeping systems record all hours worked, including time spent donning and doffing necessary protective gear.

Mark T. Kobata and Marty Denis are partners at the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago. To comment, email

Mark Kobata and Marty Denis are partners at the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago.

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