Amicus Curiae Brief — Tyson Foods, Inc. v. Bouaphakeo ex rel. Situated, 135 S. Ct. 2806 (2015) (No. 14-1146)

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Sudrerré Wour, U.S.

SEP 29 2015

No. 14-1146

In the Supreme Court of the Cinited States

TYSON Foops, INC., PETITIONER

U’.

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 FIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

DONALD B. VERRILLI. JR.

Solicitor General

M. PATRICIA SMITH Counsel of Record

Solicitor of Labor EDWIN S. KNEEDLER

JENNIFER S. BRAND Deputy Solicitor General

Associate Solicitor BRIAN H. FLETCHER

PAUL L. FRIEDEN Assistant fo the Solicitor

Counsel for Appellate General

Litigation Department of Justice

LAURA M. Moskow1T7 Washington, D.C. 20530-9001

Senior Attorney SupremeCt Briefsta usdoj.qor

Department of Labor (202) 514-2217

Washington, D.C. 20210

QUESTIONS PRESENTED

1. Whether respondents’ suit seeking unpaid over-

time on behalf of employees at a meat-processing

plant was properly maintained as a class action under

Federal Rule of Civil Procedure 23(b)(3) and a collec-

tive action under the Fair Labor Standards Act of

1938 (FLSA), 29 U.S.C. 201 et seg., where the compen-

sability of the disputed activities turned on common

questions of law and fact and where respondents es-

tablished the extent of the employees’ unpaid work on

a class-wide basis by using the burden-shifting frame-

work set forth in Anderson v. Mt. Clemens Pottery

Co., 328 U.S. 680 (1946).

2. Whether a Rule 23(b)(3) class action or an FLSA

collective action may be certified or maintained when

the class members or collective-action plaintiffs in-

clude individuals who may ultimately be shown to have

no entitlement to recover damages.

(T)

TABLE OF CONTENTS

Page

Interest of the United States ........cccccccssssccsssssesssssssscsesoeoseessecccce ]

Statutory provisions, regulations, and rule involved................ 2

Statement:

A. The Fair Labor Standards Act and

EN 2

B. The present controversy ......c..cccccccccsecsessssseccseeccoseee 7

SES Ean 12

Argument:

I. Respondents’ suit was properly maintained as a

class action under Rule 23(b)(3) and a collective

action under the Fair Labor Standards Act... l4

A. Respondents’ suit was properly maintained

EE 14

1. The predominance inquiry is shaped by

the governing substantive law .........-...cccccc. 15

2. Mt. Clemens sets forth a substantive

rule of law that allows employees to

establish the extent of their unrecorded

work with common proof ..............ccccceccesecesseoes 17

3. The trial record demonstrates that

individual questions did not predominate

because respondents properly invoked

Mt. Clemens to prove their case on a

I 18

4. Petitioner's challenges to the lower

courts’ application of Mt. Clemens lack

ES ee 23

B. Respondents’ suit was properly maintained

as an FLSA collective action .................... 29

II. The presence of employees who were ultimately

shown to have no right to recover did not require

decertification of the class and collective actions........31

(IIT)

Table of Contents—Continued: Page

A. The possibility that some class members

may ultimately be found to have no right

to recover does not preclude certification

ee ietibaiiictinttiitiniisitniasidletsiictetasiciniitaiy 31

B. The presence of some members who were

shown to have no right to recover did not

require decertification of the class and

ARETE IRE MASEL NES 38

SI ncccsessiciniuniinieinittiiniatcatiiaits tai tlie lawn ty wi Ee 35

Appendix — Statutory provisions, regulations, and rule......1a

TABLE OF AUTHORITIES

Cases:

Acosta v. Tyson Foods, Inc., No. 08-cv-86, 2013 WL

7849473 (D. Neb. May 31, 2013), rev'd, No. 14-1582,

2015 WL 5023643 (8th Cir. Aug. 26, 2015) .......cccccccceenens 8

Amgen, Inc. v. Connecticut Ret. Plans & Trust

Funds, 133 S. Ct. 1184 (20138) ......ccccccccccsseeneees 16, 17, 23, 38

Andersen v. Mt. Clemens Pottery Co., 328 U.S. 680

SUITE wiechicusievnnictiiiniiammaiaeiadeaieiadlaahaptitiaiiahinshienatans passim

Basic Inc. v. Levinson, 485 U.S. 224 (1988).......c.cccccceccceseees 16

Brock v. Norman's Country Mkt, Inc., 835 F.2d 823

(11th Cir.), cert. denied, 487 U.S. 1205 (1988) ...0.......000. 7

City & County of SF. v. Sheehan, 135 S. Ct. 1765

SR e einsieatincsestincenenienitaatinnntceimatigtianiaiaeatastaattiariilaitesiasaemeaiai 32

Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013)........ 16, 18

Comer v. Wal-Mart Stores, Inc., 454 F.3d 544 (6th

SS rear nsesisicsersteceiensssinceisebieniinsceeinieteiindaieiidedlibibisatntadanishtas 4

Davis v. United States, 131 S. Ct. 2419 (2011) ....... eee 32

DOL v. Cole Enters., Inc., 62 F.3d 775 (6th Cir. 1995).......23

Donovan v. Bel-Loc Diner, Inc., 780 F.2d 1113 (4th

GD Bare streennssceneniepusnnnpinitnaieoniiieesasvapaiianiniaiiniiniaatiidaiibidiaalal 17

Cases—Continued: Page

Dybczak v. Tuskegee Inst., 737 F.2d 1524 (11th Cir.

1984), cert. denied, 469 U.S. 1211 (1985)... cceceeseees 19

Erica P. John Fund, Inc. v. Halliburton Co.,

as San TT aacincinrrescnteathiteinetateesicniananinesiienniaiy 15, 16

Espenscheid v. DirectSat USA, LLC, 705 F.3d 770

ee ee iesicctrinieniesininctnrstenesiiseiniliiessininsitebidienitapeal, 26, 30

Garria v. Tyson Foods, Inc., 770 F 3d 1300 (10th Cir.

STE onehadellhaciaieinsceicentatieneppiedetesaeiueritnntemeitaiattiastiddininiasninmadaedion 25

Genesis Healthcare Corp. v. Symezyk, 133 S. Ct.

NRE a ee ee ee Or em: 3, 4, 30, 35

Grayson v. K Mart Corp., 79 F.3d 1086 (11th Cir.),

cert. denied, 519 U.S. 982, and 519 U.S. 987 (1996)......... 30

Halliburton Co. v. Erica P. John Fund, Inc.,

Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165

Trai etcsiciesnicataenentaneieicduadeg inant diindiubadanidtpiastninagetes, 29, 30, 31

IBP, Inc. v. Alvarez, 546 U.S. 21 (2005) .........ccceccceceeeees 2, 3,6

Kohen v. Pacific Inv. Mgmt. Co., 571 F.3d 672

(7th Cir. 2009), cert. denied, 559 U.S. 962 (2010)............. 32

Martin v. Selker Bros., 949 F.2d 1296 (3d Cir. 1991)......... 27

Martin v. Tony & Susan Alamo Found., 952 F.2d

1050 (8th Cir.), cert. denied, 505 U.S. 1204 (1992)........... 23

McLaughlin v. Ho Fat Seto, 850 F.2d 586 (9th Cir.

1988), cert. denied, 488 U.S. (1989) ...........ccccccseseeessseseeeeees 23

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139

SS iistahisciipeedinaiisiaiidalaan tinier ninvaiaeinaibmmiaa

Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233

(11th Cir. 2008), cert. denied, 558 U.S. 816

Mt. Clemens Pottery Co. v. Anderson, 149 F.2d 461

a See eibnseatanicnrnicensihichssenestonseneinontsinniteapiteipniealictusentaiet 5, 24

Cases—Continued: Page

Mullins v. Direct Digital, LLC, 795 F.3d 654

EE ee ee ene ee 33

O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567

NI siniditi chelate cnet ities 18, 30, 35

Ortiz v. Jordan, 562 U.S. 180 (2011) ..........cccccccescesesceseseeceee 18

Perez v. Mountaire Farms, Inc., 650 F.3d 350

(4th Cir. 2011), cert. denied, 132 S. Ct. 1634 (2012)......... 25

Reich v. Gateway Press, Inc., 13 F.3d 685 (3d Cir.

STIPUITIID ssscnshsessenemshesibipieipinaniastenitetataiantieteniatieadeiiamsinbitaaatataciandsintanlanss 17

Reich v. Southern New England Telecomm. Corp.,

ee Ge A ee 17, 27

Secretary of Labor v. DeSisto, 929 F.2d 789 (ist Cir.

SEIT cinching ganttaaen neciadartihaataidaaac 24, 27

Thiessen v. General Elec. Capital Corp., 267 F.3d

1105 (10th Cir. 2001), cert. denied, 536 U.S. 934

Urethane Antitrust Litig., In re, 768 F.3d 1245

(10th Cir. 2014), petition for cert. pending,

No. 14-1091 (filed Mar. 9, 2015) 0.0... eee 18, 34

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541

RRR RSME OR RES RS Ei IES AE ae aN 15, 16, 19

Constitution, statutes, regulations and rules:

Se I Shs I cntinisctichicenearersneihbeiinipracnaipemninitsiadinsatdetnenintine 32

Age Discrimination in Employment Act of 1967,

III ccinsssssininicnnnianiinsiaisientehiintissinmtbciaienminnmantiin 1

aan ER achasaiinsnhiieniatiritsiethinstiimtiinirednmeanipesmimmemnientes 1

Equal Pay Act of 1963, 29 U.S.C. 206() 202... cccecccceseeeeeeeees 1

Fair Labor Standards Act of 1938, 29 U.S.C. 201

I ceencarctasaenniniesiestsniasenecerniitantiatainitataiemsintisntateumansintitiiinaasignts 1,2

PE Wi wiiicncicnictiistiincesnieitinlimsibacieasiiiatnitastapinaiaiogiaiies ]

VII

Statutes, regulations and rule—Continued: Page

ls Hla iisihiatininietisatdaicainansiaibiahabaniiietiaapenatanlzinbiaial 2

EERE NEE EI ee, 32

a ts I cihicinsshinseincinbicihitinthantntnarnbieiabbatsccintiuealal 4,27

Re ee passim

IE ee ae tee CLIPS 1,3

SF pnt iniiceiapiinsibhesetimatntindepiihatiniaciiadiisttaeaa i 1,3

Portal-to-Portal Act of 1947, 29 U.S.C. 251 et seq... 2

Ss MI uiliiiiilinsiiiicilatirhaienlistaatas de aa aa we 2,3

29 C.F.R.:

ETRE AI See A ee Nee ea 4

Ne aI taiscrtiiteieihitiaCihiiteiinnisieiaiiitiansinamainiitiindiainiintial 3

lowa Code Ann. (West 2007):

SeastT siseciviainsicicesnhicceansaiitoeiceath eile taal 4

SII peecaescidne scien 9

Fed. R. Civ. P.:

SII idiassaiAtnsiseasimeeaseindininiatansiantnianidneeiateal 9, 11, 29, 31, 32

Rule 23 advisory committee’s note (1966) .........cc00. 29

PIII i cicisncesteetieniieiieciatesiemenemeceniunanesel passim

SIT EI ee eS 33

Rule 23(c)(1) advisory committee’s note (2003) ............ 18

> EERE ane nem E ES ere 34

Miscellaneous:

Dep't of Labor, Op. Letter, 2001 WL 58864 (Jan. 15,

2001), withdrawn in part on other grounds, 2002

WL 33941766 (June 6, 2002)..............ccscesssssserssesesesssesesesscerees 8

Laurie E. Leader, Wages and Hours: Law and

Pe Ci crnnsscensstatnsentusnicconioisiidateneinnncnmnenaniets 7, 17, 30

2 William B. Rubenstein, Newberg on Class Actions

TT aiebertecsshinssiceesihisetisatecdccbetinnestaiestniniiatertabinsteniiatindgs 16

VII

Miscellaneous—Continued:

Page

Charles Alan Wright et al., Federal Practice and

Procedure:

Vol. 7B (3d ed. Supp. 2015) .......cscccssccssssessesssssesssssseseococe 30

Vol. 18 (2d ed. 2002)

In the Supreme Court of the United States

No. 14-1146

TYSON Foops, INC., PETITIONER

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

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

The Secretary of Labor administers the Fair Labor

Standards Act of 1938, 29 U.S.C. 201 et seq., by, inter

alia, bringing enforcement actions to recover unpaid

wages for employees. 29 U.S.C. 204, 216(c), 217.

Private coliective actions under 29 U.S.C. 216(b) are

an essential supplement to the Secretary’s enforce-

ment. Such actions also supplement enforcement of

the Equal Pay Act of 1963, 29 U.S.C. 206(d), and the

Age Discrimination in Employment Act of 1967, 29

U.S.C. 621 et seg. See 29 U.S.C. 216(b), 626(b). The

government similarly relies on class actions under

Federal Rule of Civil Procedure 23(b)(3) to supple-

ment its enforcement of other statutes. And the Unit-

(1)

“

ed States is a potential defendant in both class and

collective actions.

STATUTORY PROVISIONS, REGULATIONS,

AND RULE INVOLVED

Pertinent statutory provisions, regulations, and

provisions of Federal Rule of Civil Procedure 23 are

reproduced in an appendix to this brief. App., infra,

la-16a.

STATEMENT

A. The Fair Labor Standards Act and Mt. Clemens

1. The Fair Labor Standards Act of 1938 (FLSA),

29 U.S.C. 201 et seqg., generally requires employers to

pay a minimum wage for all hours worked and an

overtime rate of one and one-half times an employee's

regular wage for work in excess of 40 hours in a

workweek. 29 U.S.C. 206, 207. This Court has long

held that “the statutory workweek” ordinarily in-

cludes “all time during which an employee is neces-

sarily required to be on the employer’s premises, on

duty or at a prescribed workplace.” /BP, Inc. v. Alva-

rez, 546 U.S. 21, 25-26 (2005) (citation omitted).

Congress responded to that broad interpretation

by enacting the Portal-to-Portal Act of 1947 (Porta!

Act), 29 U.S.C. 251 et seg. The Porta! Act did not alter

“this Court's earlier descriptions of the terms ‘work’

and ‘workweek,’” but it created “express exceptions

for travel to and from the location of the employee's

‘principal activity,’ and for activities that are prelimi-

nary or postliminary to that principal activity.” Alva-

rez, 546 U.S. at 28 (quoting 29 U.S.C. 254(a)). Those

exceptions apply only “prior to the time on any partic-

ular workday at which [an] employee commences, or

subsequent to the time on any particular workday at

which he ceases, [his] principal activity or activities.”

29 U.S.C. 254(a). Accordingly, the compensable

workday generally encompasses “the period between

the commencement and completion” of an employee's

principal activities. 29 C.F.R. 790.6(b); see Alvarez,

546 U.S. at 28-29.

The term “principal activities” includes “all activi-

ties which are an ‘integral and indispensable part of

the principal activities’” a worker is employed to per-

form. Alvarez, 546 U.S. at 29-30 (citation omitted).

For example, “the donning and doffing of specialized

protective gear” by factory workers is a compensable

principal activity if it is an integral and indispensable

part of their job. /d. at 30. And “any walking time

that occurs after the beginning of the employee's first

principal activity and before the end of the employee's

last principal activity”—including time spent walking

between a locker room and the production line after

donning and before doffing protective gear—is there-

fore “covered by the FLSA.” /d. at 37.

2. The Secretary of Labor is authorized to sue to

compel an employer to pay wages owed under the

FLSA. 29 U.S.C. 216(¢), 217. The FLSA also author-

izes “any one or more employees” to bring an action—

known as a “collective action"—to recover unpaid

wages “for and in behalf of himself or themselves and

other employees similarly situated.” 29 U.S.C. 216(b);

see Genesis Healthcare Corp. v. Symczyk, 133 S. Ct.

1523, 1527 (2013). Such actions are “fundamentally

different” from class actions under Federal Rule «

Civil Procedure 23. /d. at 1529. Among other things,

a collective action binds only employees who opt in by

filing written consents, and those employees become

“party plaintiffis].” 29 U.S.C. 216(b).

Courts hearing collective actions typically follow a

two-step joinder process commonly—albeit somewhat

imprecisely—called “certification.” Comer v. Wal-

Mart Stores, Inc., 454 F.3d 544, 546-547 (6th Cir.

2006); see Genesis Healthcare, 133 S. Ct. at 1527 n.1.

First, if the named plaintiffs make a preliminary

showing that other employees are “similarly situated,”

the court may “conditionally certify” the collective

action—i.e., allow the plaintiffs to take discovery of

the names and addresses of potential opt-in plaintiffs

and notify them of the action. Genesis Healthcare,

133 S. Ct. at 1530. Second, after the filing of opt-in

consents and further discovery, the employer may

move to “decertify” the collective action in whole or in

part. Comer, 454 F.3d at 546-547, 549. The court

must then determine whether the challenged opt-in

plaintiffs are, in fact, “similarly situated” to the

named plaintiffs. /d. at 549.

3. To facilitate enforcement of the FLSA, Con-

gress mandated that every covered employer keep

“records of the persons employed by him and of the

wages, hours, and other conditions and practices of

employment maintained by him” in accordance with

regulations issued by the Secretary. 29 U.S.C. 211(c).

Those regulations require employers to record each

employee's “{hjours worked each workday,” “total

hours worked each workweek,” and regular and over-

time pay. 29 C.F.R. 516.2(6)-(9). If an employer has

kept those records, the Secretary or employee plain-

tiffs can “easily” establish the extent of any uncom-

pensated work in an action to recover backpay. An-

derson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687

(1946) (Mt. Clemens). But “where the employer's

records are inaccurate or inadequate,” the task be-

comes far more difficult. /bid.

This Court addressed that problem in Mt. Clemens,

which was a collective action brought by approximate-

ly 300 factory workers seeking to recover overtime for

pre-shift activities, including time spent walking to

their workstations, putting on gear, and preparing

equipment. Mt. Clemens Pottery Co. v. Anderson, 149

F.2d 461, 461-464 (6th Cir. 1945). Because the em-

ployer had not recorded the time spent on those pre-

shift tasks, the workers relied on testimony from eight

employees. /d. at 462. The court of appeals found

that evidence inadequate, concluding that “the burden

rested on each of the plaintiffs to prove by a prepon-

derance of the evidence that he did not receive the

wages that he was entitled to receive under the

[FLSA], and to show by evidence, not resting upon

conjecture, the extent of overtime worked.” /d. at

465. “It does not suffice,” the court held, “for the em-

ployee to base his right to recovery on a mere esti-

mated average of overtime worked.” /bdid.

This Court disagreed, holding that the court of ap-

peals had imposed “an improper standard of proof”

that would have had “the practical effect of impairing

many of the benefits of the [FLSA].” Mt. Clemens,

328 U.S. at 686. The Court reasoned that employees

should not be penalized for their employer's “failure

to keep proper records in conformity with his statuto-

ry duty,” and that such a failure instead calls for a

burden-shifting framework. /d. at 687.

Under that framework, employees carry their bur-

den if they show that they “in fact performed work for

which [they were] improperly compensated and if

[they] produce[] sufficient evidence to show the

amount and extent of that work as a matter of just and

reasonable inference.” 328 U.S. at 687. The burden

then shifts to the employer, who must “come forward

with evidence of the precise amount of work per-

formed or with evidence to negative the reasonable-

ness of the inference” from the employees’ proof. /d.

at 687-688. If the employer fails to do so, “the court

may then award damages to the employee(s], even

though the result be only approximate.” Jd. at 688.

The Court made ciear that “even where the lack of

accurate records grows out of a bona fide mistake”

about the compensability of the unrecorded work, “the

employer, having received the benefits of such work,

cannot object to the payment for the work on the most

accurate basis possible under the circumstances.”

Ibid.

In Mt. Clemens itself, the Court determined that

the workers were entitled to be paid for time spent

walking to their workstations and for any preliminary

activities performed there, subject to a de minimis

rule. 328 U.S. at 690-693.' The Court further held

that the workers could not “be barred from their stat-

utory rights” on the ground that “the amount of time

taken up by the activities * * * had not been proved

by [them] with any degree of reliability or accuracy.”

Id. at 693. The Court remanded to the district court

to determine the amount of compensable time, reiter-

ating that “({u]nless the employer can provide accurate

estimates, it is the duty of the trier of facts to draw

whatever reasonable inferences can be drawn from

the employees’ evidence.” /d. at 693-694.

' That aspect of Mt. Clemens was abrogated in part by the Portal

Act. Alvarez, 46 U.S. at 28.

For nearly 70 years, the Mt. Clemens framework

has been essential to effective enforcement of the

FLSA because it allows the Secretary or private

plaintiffs to establish the amount of unrecorded work

performed by a group of emplovees using “repre-

sentative testimony from a sampling of [the] affected

employees.” Laurie E. Leader, Wages and Hours:

Law and Practice § 9.03(2], at 9-32 (2015) (Wages and

Hours). Although such proof necessarily relies on

approximations, “[iJt is firmly established [that] where

an employer has not kept adequate records,” employ-

ees “will not be denied a recovery of back wages on

the ground that their uncompensated work cannot be

precisely determined.” Brock v. Norman’s Country

Mkt., Inc., 835 F.2d 823, 828 (11th Cir.), cert. denied,

487 U.S. 1205 (1988).

B. The Present Controversy

1. Petitioner operates a pork-processing plant in

Storm Lake, Iowa. Pet. App. 45a. Most workers in

the plant use knives or other cutting tools, and peti-

tioner requires all employees to wear protective and

sanitary gear. /d. at 26a, 46a-47a. The equipment is

provided by petitioner and stored in lockers at the

plant. J.A. 118-119. Employees generally don their

equipment in locker rooms before walking to their

stations on the production line, and they are required

to be fully dressed before their work on the line be-

gins. Pet. App. 26a, 47a; J.A. 120.

Petitioner pays its production employees on a sys-

tem known as “gang time.” Pet. App. 2a, 26a. Pay

begins when the first hog of the day arrives at an

employee’s workstation and ends when the last hog

leaves. J.A. 171. During the years at issue in this

case, petitioner also paid some employees for a few

additional minutes per day—known as “K-code”

time—intended to estimate the time required for some

(but not all) required pre- and post-shift activities.

J.A. 121-122. Before 2007, petitioner paid four

minutes of K-code time to all production employees to

cover the estimated time required to don and doff

certain equipment worn to protect against knife cuts.

Ibid.* In 2007, after this Court’s decision in Alvarez,

petitioner began paying knife-wielding employees for

the time spent walking between the locker room and

the production line. /bzd. Petitioner also revised the

amount of donning and doffing time attributed to

those employees, resulting in total K-code payments

of between 4 and 8 minutes per day, depending on the

* Petitioner began making those payments in 1998, following two

enforcement actions brought by the Department of Labor against

petitioner’s predecessor, IBP. Acosta v. Tyson Foods, Inc., No.

08-cv-86, 2013 WL 7849473, at *9-*11 (D. Neb. May 31, 2013),

rev'd, No. 14-1582, 2015 WL 5023643 (8th Cir. Aug. 26, 2015). The

first action resulted in an injunction requiring IBP to comply with

the FLSA’s overtime and recordkeeping requirements with re-

spect to pre- and post-shift work at Storm Lake and other facili-

ties. Jd. at *10. In settling a second enforcement action brought to

remedy IBP’s violation of the injunction, the Department agreed

that IBP coud pay for the donning and doffing held to be compen-

sable in the original action by paying four minutes of K-code time,

but only “until such time as the Department announces its position

with respect to recordkeeping in the industry.” /d at *11 (empha-

sis and citation omitted). In 2001—well before the class period in

this case—the Department clarified that meatpacking companies

may not rely on such estimates and must instead “record and pay

for each employee's actual hours of work, including compensable

time spent putting on, taking off and cleaning his or her protective

equipment, clothing, or gear.” Dep't of Labor, Op. Letter, 2001

WL 58864, at *2 (Jan. 15, 2001), withdrawn in part on other

grounds, 2002 WL 33941766 (June 6, 2002).

position. /bid. At the same time, petitioner ceased

paying K-code time to non-knife-wielding employees,

taking the position that donning and doffing the

standard sanitary and protective equipment those

employees wore was not compensable. /bid. At no

point did petitioner record the actual amount of time

workers devoted to any of their pre- and post-shift

activities. Pet. App. 2a; J.A. 175.

2. Respondents are current and former production

employees at the Storm Lake plant. They filed this

action under the FLSA, alleging that petitioner un-

lawfully failed to pay overtime for pre- and post-shift

activities and for donning and doffing during meal

breaks. Pet. App. la, 5a. Respondents also brought a

parallel claim under an Iowa statute that provides a

cause of action to collect wages owed under another

source of law—here, the FLSA. /d. at 56a; see lowa

Code Ann. §§ 91A.3, 914.4 (West 2007). Respondents

moved to certify their FLSA claim as a collective

action and t« certify the parallel Iowa law claim as a

class action under Federal Rule of Civil Procedure

23(b)(3).

a. The district court conditionally certified a collec-

tive action and certified a class action, holding that the

requirements of Section 216(b) and Rule 23 were sat-

isfied. Pet. App. 4la-113a. The court rejected peti-

tioner’s contention that differences in the equipment

worn by employees precluded certification for lack of

similarity and commonality, finding that “there are far

more factual] similarities than dissimilarities” among

the collective- and class-action members. /d. at 88a-

89a; see id. at 98a-99a. The court also concluded un-

der Rule 23(b)(3) that questions common to the class

predominated over questions affecting only individual

members, noting that “common evidence that [peti-

tioner’s} compensation system cannot account for even

the basic or standard [equipment] employees need to

don, doff, and clean would establish a prima facie case

for the class.” /d. at 109a. A total of 444 employees

joined the collective action; the parallel class had 3344

members. J.A. 117.

b. The case proceeded to trial before a jury. The

parties stipulated that employees were entitled to be

paid for donning and doffing certain equipment worn

to protect from knife cuts. J.A. 120. But it was for the

jury to determine whether donning and doffing other

protective and sanitary equipment was compensable,

whether petitioner was required to pay for donning

and doffing during meal breaks, and the total amount

of time spent on work not compensated under peti-

tioner’s gang-time system. J.A. 473-481.

To establish the time employees spent on the activ-

ities at issue, respondents presented employee testi-

mony, video recordings of donning and doffing at the

plant, and a study performed by an _ industrial-

engineering expert. Pet. App. 5a, 13a. Based on 744

videotaped observations, the expert estimated that

donning, doffing, and related activities required 21.25

minutes per day for positions on the plant’s slaughter

floor and 18 minutes per day for positions on the pro-

cessing floor. J.A. 123-124. A second expert combined

those estimates with petitioner’s available wage-and-

hour records to calculate the amount of uncompen-

sated overtime worked by each class and collective

action member. J.A. 139. Based on those calculations,

plaintiffs sought approximately $6.7 million in unpaid

overtime. J.A. 139, 465-466.

The jury returned a special! verdict finding that the

disputed pre- and post-shift activities were compensa-

ble, but that donning and doffing during meal breaks

was not. J.A. 486-487. It awarded roughly $2.9 mil-

lion. J.A. 488.

3. The court of appeals affirmed. Pet. App. la-24a.

a. The court first rejected petitioner’s contention

that differences in the equipment worn by employees

rendered the certification of the class and collective

actions inappropriate, explaining that the employees

“used similar equipment” and were paid under the

same system. Pet. App. 7a-8a. The court recognized

that determining the amount of unrecorded time

worked by class members “require[d] inference”

based on respondents’ representative proof, but it

held that “this inference is allowable under |Mt. Clem-

ens].” Id. at 8a. The court rejected petitioner’s chal-

lenge to the sufficiency of the evidence for similar

reasons, holding that the jury could draw “a ‘reasona-

ble inference’ of classwide liability.” Jd. at 12a-13a

(quoting Mt. Clemens, 328 U.S. at 687).

The court also rejected petitioner's contention

“that the class should be decertified because evidence

at trial showed that some class members did not work

overtime” and therefore were not entitled to recover.

Pet. App. 8a. The court reasoned that a class may be

certified even if some members’ claims ultimately fail

on the merits. Jd. at 9a & n.5. It also observed that

the jury instructions ensured that the presence of

those class members did not increase the size of the

verdict. Jd. at 10a.

b. Judge Beam dissented, concluding that differ-

ences among employees should have precluded certifi-

cation of the Rule 23 class. Pet. App. 14a-24a.

4. The court of appeals denied rehearing and re-

hearing en banc. Pet. App. 114a-131a.

SUMMARY OF ARGUMENT

I. Respondents’ suit was properly maintained as a

class action under Federal Rule of Civil Procedure

23(b)(3) and a collective action under the Fair Labor

Standards Act.

A. Respondents’ lowa-law claim satisfied Rule

23(b)(3)’s requirement that questions common to the

class predominate over those affecting only individual

members. That standard requires a court to assess

the extent to which the plaintiffs’ claim will be capable

of class-wide proof. Here, the trial record and jury

verdict demonstrate that respondents did prove their

ease on a class-wide basis. There is no dispute that

respondents relied on common evidence to prove that

all “lass members’ pre- and post-shift activities were

compensable under the FLSA. And because petition-

er failed to record the time spent on those activities,

respondents properly invoked the burden-shifting

framework under Anderson v. Mt. Clemens Pottery

Co., 328 U.S. 680 (1946), to establish the extent of that

unrecorded work using representative evidence.

Petitioner asserts that respondents’ class-wide

proof was inadequate, pointing to some differences in

the protective equipment worn by class members and

variations in the amount of time spent donning and

doffing. Under Mt. Clemens, however, employees are

not required to prove the precise extent of the work

their employer improperly failed to record, and may

instead rely on inferences drawn from representative

proof. After considering essentially the same factual

contentions petitioner presents here, the jury deter-

mined that respondents’ representative proof was

sufficient to carry their burden on a class-wide basis.

Petitioner provides no sound reason to second-guess

the jury’s verdict. In particular, petitioner’s insist-

ence that employees who did comparable work in the

same plant must make individualized showings of pre-

and post-shift work time echoes the standard of proof

this Court emphatically rejected in Mt. Clemens.

B. Respondents’ parallel FLSA claim was properly

brought as a collective action. The FLSA itself grants

employees a right to proceed collectively if they are

“similarly situated.” 29 U.S.C. 216(b). Here, that

standard was amply satisfied because the opt-in plain-

tiffs worked in the same plant, engaged in comparable

unpaid activities, and were subject to the same unlaw-

ful compensation policy.

II. The inclusion of some employees who were ulti-

mately shown at trial to have no right to recover nei-

ther precluded certification of the class and collective

actions at the outset nor required decertification fol-

lowing the jury verdict. Petitioner has rightly aban-

doned its contention that the possible presence of such

individuals precluded certification altogether. And

although petitioner is correct that parties who have

been shown to have no right to recover should not be

granted relief, petitioner forfeited that objection in

this case by failing to seek to exclude such individuals

from the action and by opposing a proposal to struc-

ture the trial to prevent them from sharing in any

award. In any event, the jury instructions ensured

that individuals who were not entitled to recover did

not increase the size of the verdict.

ARGUMENT

I. RESPONDENTS’ SUIT WAS PROPERLY MAINTAINED

AS A CLASS ACTION UNDER RULE 23(b)(3) AND A

COLLECTIVE ACTION UNDER THE FAIR LABOR

STANDARDS ACT

A. Respondents’ Suit Was Properly Maintained As A

Class Action

Although petitioner frames the question before the

Court as one about the rigor of Rule 23(b)(3)’s pre-

dominance standard, at bottom the parties’ dispute

turns on a question governed by the underlying sub-

stantive law: Where, as here, an employer violates the

FLSA by failing to record its employees’ working

time, what proof is required to establish the extent of

the unrecorded work?

This Court answered that question in Anderson v.

Mt. Clemens Pottery Co., 328 U.S. 680 (1946), which

held that such employees are not required to prove

the “precise extent” of the work their employer im-

properly failed to record. Jd. at 687. Since Mt. Clem-

ens, it has been established that employees need not

offer individualized proof of unrecorded working time,

and may instead rely on inferences based on repre-

sentative evidence about other employees who per-

formed comparable work. In this case, no individual-

ized inquiries were required at trial because respond-

ents relied on the Mt. Clemens framework to prove

their case on a class-wide basis. Petitioner’s predomi-

nance argument thus reduces to the factbound conten-

tion that individualized inquiries should have been

required because differences among class members

meant that respondents’ common proof was insuffi-

cient to satisfy their burden under Mt. Clemens.’

That question—whether respondents’ claim could

be “proved on a classwide basis”—was certainly rele-

vant to initial class certification. Wal-Mart Stores,

Inc. v. Dukes, 131 S. Ct. 2541, 2555 (2011) (Wal-Mart).

But it was also a merits question, and it has now been

resolved by a jury. After hearing nine days of evi-

dence and considering essentially the same factual

arguments about differences among class members

that petitioner presents here, the jury determined

that respondents’ evidence was sufficient to carry

their burden under Mt. Clemens on a class-wide basis.

Petitioner identifies no sound basis for second-

guessing that conclusion.

I. The predominance inquiry is shaped by the govern-

ing substantive law

Under Rule 23(b)(3), a class may be certified if the

district court finds, inter alia, that “questions of law

or fact common to class members predominate over

any questions affecting only individual members.”

Fed. R. Civ. P. 23(b)(3). “Considering whether ‘ques-

tions of law or fact common to class members predom-

inate’ begins, of course, with the elements of the un-

derlying cause of action.” Erica P. John Fund, Inc. v.

Halliburton Co., 131 S. Ct. 2179, 2184 (2011). The

district court must identify the relevant factual and

legal issues and “compare the issues subject to com-

’ Although the Rule 23 class action involves a claim under an

Iowa statute, the parties have litigated the case on the understand-

ing that the FLSA and Mt. Clemens establish the governing

substantive law. J.A. 479; see p. 9, supra.

mon proof against the issues subject solely to individ-

ualized proof.” 2 William B. Rubenstein, Newberg on

Class Actions § 4:50, at 197 (5th ed. 2012). The pre-

dominance inquiry thus “generally involves considera-

tions that are enmeshed in the factual and legal issues

comprising the plaintiff's cause of action.” Comcast

Corp. v. Behrend, 133 8. Ct. 1426, 1432 (2013) (citation

omitted).

As this Court’s decisions addressing securities-

fraud class actions illustrate, the burdens borne by the

parties under the governing substantive law play a

critical role in determining whether issues are “capa-

ble of resolution on a common, classwide basis.” Hal-

liburton, 131 S. Ct. at 2184. If securities-fraud plain-

tiffs were required to prove direct reliance on a de-

fendant’s misrepresentations, the reliance element

“would ordinarily preclude certification of a class

action [under Rule 23(b)(3)] because individual reli-

ance issues would overwhelm questions common to the

class.” Amgen Inc. v. Connecticut Ret. Plans & Trust

Funds, 133 8. Ct. 1184, 1193 (2013). But ii the plain-

tiffs are able to invoke the fraud-on-the-market pre-

sumption recognized in Basic Inc. v. Levinson, 485

U.S. 224 (1988), “the problem dissipates.” Wal-Mart,

131 S. Ct. at 2552 n.6. The Basic presumption “is a

substantive doctrine of federal securities-fraud law

that can be invoked by any * * * plaintiff.” Amgen,

133 S. Ct. at 1193. But that substantive doctrine also

“facilitates class certification” because it allows the

use of common proof to establish a “rebuttable pre-

sumption of classwide reliance” without individualized

inquiries. /bid.

2. Mt. Clemens sets forth a substantive rule of law

that allows employees to establish the extent of

their unrecorded work with common proof

Like the Basic presumption, the Mt. Clemens

framework is a substantive doctrine that allows a

group of employees to establish an element of their

claim using common evidence. Employees need not

offer individualized proof of the extent of their unre-

corded work in order to carry their burden. Instead,

evidence of the work performed by “a representative

sample of employees” can be used to establish the

extent of the work performed by the entire group.

Reich v. Southern New England Telecomms. Corp.,

121 F.3d 58, 67 (2d Cir. 1997) (SNET).

Mt. Clemens itself involved representative testi-

mony from eight employees concerning work done by

300 collective-action plaintiffs. See pp. 5-6. supra.

And decades of decisions confirm that Mt. Clemens

allows the use of “representative employees to prove

violations [of the FLSA] with respect to all employ-

ees” ina case. Reich v. Gateway Press, Inc., 13 F.3d

685, 701 (3d Cir. 1994). Indeed, “{clourts have fre-

quently granted back wages under the FLSA to non-

testifying employees based upon the representative

testimony of a small percentage of the employees.”

Donovan v. Bel-Loc Diner, Inc., 780 F.2d 1113, 1116

(4th Cir. 1985); see Morgan v. Family Dollar Stores,

Inc., 551 F.3d 1233, 1278-1279 (11th Cir. 2008) (collect-

ing cases), cert. denied, 558 U.S. 816 (2009); Wages

and Hours § 9.03|2], at 9-32 (same).

Accordingly, the Mt. Clemens framework has “par-

ticular significance” under Rule 23(b)(3), Amgen, 133

S. Ct. at 1193, because it allows a group of employees

to use common evidence to establish the extent of

their unrecorded work on a class-wide basis even

though such proof “would ordinarily be individual-

ized.” O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d

567, 585 (6th Cir. 2009).

3. The trial record demonstrates that individual ques-

tions did not predominate because respondents

properly incoked Mt. Clemens to prove their case

on a class-wide basis

When predominance questions are presented at the

class-certification stage, the district court necessarily

must rely on predictions about “how the case will be

tried.” Fed. R. Civ. P. 23(c)(1) advisory committee's

note (2003). The court may also be required to deter-

mine whether the elements of the plaintiffs’ claim will

be “susceptible of class-wide proof,” even though that

question overlaps with the merits. /bid.; see Comcast,

133 S. Ct. at 1432. Here, however, there is “no need to

make a prediction” about how respondents’ claim will

be tried because this Court “ha[s] the benefit of seeing

what ultimately took place at trial.” Jn re Urethane

Antitrust Litig., 768 F.3d 1245, 1259 (10th Cir. 2014),

petition for cert. pending, No. 14-1091 (filed Mar. 9,

2015); ef. Ortiz v. Jordan, 562 U.S. 180, 184 (2011)

(“Once the case proceeds to trial, the full record de-

veloped in court supersedes the record existing at the

time of [a] summary judgment motion.”). Further-

more, to the extent the propriety of class certification

turns on whether respondents’ claims were capable of

class-wide proof, the Court should not disturb the

jury's finding—i.e., that respondents did prove their

case on a class-wide basis—absent some error in the

trial or a legal insufficiency of the evidence.‘

The jury’s special verdict resolved four common

questions that determined the compensability of the

disputed activities performed by all class members.

The jury found that: (1) donning and doffing protec-

tive and sanitary equipment was “work” under the

FLSA; (2) donning and doffing that equipment was

“‘integral and indispensable’ to the employees’ gang-

time work” and therefore marked the start and end of

the compensable workday; (3) donning and doffing

during meal] breaks was not compensable; and (4) the

compensable activities were not de minimis. J.A. 486-

487. Petitioner does not dispute (Br. 28-29) that those

findings applied equally to all class members. The

class-action procedure thus made it possible to resolve

“in one stroke” issues that were “central to the validi-

ty of each one of the [class members’] claims.” Wal-

Mart, 131 S. Ct. at 2551.

The common conclusion that employees’ pre- and

post-shift work was compensable did not, of course,

fully resolve the case. To establish that employees

were entitled to additional overtime, respondents also

had to show that they worked more than 40 hours per

week and that the K-code time paid by petitioner did

not fully compensate for pre- and post-shift work. But

with a single exception, respondents relied on peti-

* In other contexts, it is “well settled” that “‘all findings neces-

sarily made by the jury in awarding the verdict * * * are binding

on the parties as well as on the trial court."” Dydczak v. Tuskegee

Inst., 737 F.2d 1524, 1526-1527 (11th Cir. 1984) (citation omitted),

cert. denied, 469 U.S. 1211 (1985); see 18 Charles Alan Wright et

al., Federal Practice and Procedure § 4418 & n.24, at 472 (2d ed.

2002).

tioner’s own records to establish all of the facts rele-

vant to that showing. Using “time sheets” and “[pJay

data” obtained “directly from [petitioner],” respond-

ents’ expert provided individualized calculations for

each class member (and aggregate calculations for the

class) reflecting each worker's shift work (gang time)

for each week, any additional K-code time paid, and

the worker's rate of pay. Pet. App. 13a. There was no

dispute over the expert’s calculations, and petitioner

does not appear to contend that those essentially

mechanical determinations caused individual ques-

tions to predominate.

Petitioner's predominance argument depends, in-

stead, on the one fact not discernible from its records:

the time each employee spent on pre- and post-shift

work. Had petitioner complied with its obligation to

keep records of that time, the amount of additional

compensable time would have been equally subject to

mechanical proof. But petitioner asserts that, given

the absence of such records, the only way for respond-

ents to establish the time spent on pre- and post-shift

work was through laborious individualized inquiries

into the donning, doffing, and walking routines of each

class member.

Petitioner’s argument ignores the legal conse-

quences of its recordkeeping violation. Petitioner

assumes (Br. 19, 34) that each class member was re-

quired to prove the “actual” amount of time he spent

on pre- and post-shift activities. Under Mt. Clemens,

however, petitioner’s recordkeeping violation relieved

respondents of the need “to prove the precise extent

of [their] uncompensated work.” 328 U.S. at 687.

Instead, respondents could carry their burden by

using representative evidence to establish the extent

of employees’ uncompensated work as a matter of

“just and reasonable inference”’—a standard that

necessarily allows “approximat{ion].” /d. at 687-688.

Respondents followed that approach here, present-

ing representative testimony from employees, video

recordings of donning and doffing, and a study caleu-

lating averages of pre- and post-shift working time for

slaughter and processing positions based on 744 vide-

otaped observations. Pet. App. 5a, 13a; J.A. 123-124.

Such proof is permissible as a substantive matter

under Mt. Clemens. Petitioner therefore errs in sug-

gesting (Br. 36) that the class-action procedure low-

ered respondents’ burden of proof or altered its sub-

stantive rights: The same standard would have ap-

plied in an enforcement action by the Secretary or an

individual action by an employee, and either the Sec-

retary or the employee could have relied on the same

type of evidence to carry his burden at the first stage

of the Mt. Clemens framework.

Petitioner could have sought to rebut the reasona-

ble inferences drawn from respondents’ proof. Mt.

Clemens, 328 U.S. at 687. If, for example, petitioner

believed that respondents’ expert overlooked salient

differences between jobs in the plant by dividing them

into only two categories (slaughter and processing),

petitioner could have presented a study using a differ-

ent methodology—for example, dividing jobs between

those that involved knives and those that did not, or

relying on more granular categories. But petitioner

made no effort to offer competing estimates of the

time spent on pre- and post-shift work.

Instead, petitioner sought to present the jury with

an all-or-nothing choice, arguing that it should deny

recovery to the class because “there has been a total

lack of proof of representative evidence.” Tr. 1751-

1752. Indeed, a central theme of petitioner’s closing

argument was that respondents’ representative proof

could not support a class-wide award because the jobs

in the plant required “different combinations of sani-

tary and protective items” that took different amounts

of time to don and doff. Tr. 1753-1754; see Tr. 1751-

1760, 1782-1783, 1786-1787. Petitioner thus presented

the jury with essentially the same factual arguments it

now seeks to have this Court accept as a basis for

decertification.

The jury rejected those arguments and found re-

spondents’ evidence sufficient under the Mt. Clemens

standard. Using language proposed by petitioner, the

district court instructed the jury that respondents

could prove their case using “representative evidence”

from employees who performed “substantially simi-

lar” work, and it specifically instructed the jury to

consider whether the class members “wore similar

sanitary and protective items” and engaged in “simi-

lar” donning and doffing activities. J.A. 472; see J.A.

93. Again using language proposed by petitioner, the

court further instructed that if the jury found the

activities at issue compensable, it should apply the Mt.

Clemens framework in determining the amount the

class was entitled to recover. J.A. 480-481; see J.A.

100-101. In returning a verdict for the class, there-

fore, the jury necessarily concluded that the differ-

ences among class members were not so substantial as

to prevent a reasonable inference of the amount of

uncompensated work they performed.

The trial record and jury verdict thus demonstrate

that respondents’ suit satisfied Rule 23(b)(3)’s pre-

dominance requirement because respondents proved

their case on a class-wide basis. Individual issues did

not “overwhelm questions common to the class,”

Amgen, 133 S. Ct. at 1193; to the contrary, aside from

matters established mechanically with petitioner's

own records, individualized inquiries were not re-

quired at all.

4. Petitioner's challenges to the lower courts applica-

tion of Mt. Clemens lack merit

Petitioner’s challenge to the decision below thus at

bottom must be based not on the stringency of the

standard imposed by Rule 23(b)(3), but rather on the

contention (Br. 40-44) that respondents’ class-wide

evidence failed to satisfy the Mt. Clemens standard.

But petitioner has abandoned its direct sufficiency-of-

the-evidence challenge, and its indirect attacks on the

adequacy of respondents’ proof lack merit.

a. Petitioner principally repeats its factbound ar-

gument (Br. 29-35, 42-44) that variations in the don-

ning and doffing routines of individual class members

rendered respondents’ evidence insufficient for the

jury to draw a reasonable inference of the extent of

class members’ uncompensated work. But petitioner

provides no sound basis for disturbing the jury’s de-

termination. In particular, it is well-settled that em-

ployees relying on representative evidence need not

establish that they performed identical work. All that

is required is that the proof be “fairly representa-

tive’—a standard that necessarily allows for some

variation. Morgan, 551 F.3d at 1279-1280 (citation

omitted); see, e.g., DOL v. Cole Enters., Inc., 62 F.3d

775, 781 (6th Cir. 1995); Martin v. Tony & Susan

Alamo Found., 952 F.2d 1050, 1052 (8th Cir.), cert.

denied, 505 U.S. 1204 (1992); McLaughlin v. Ho Fat

Seto, 850 F.2d 586, 589 (9th Cir. 1988), cert. denied,

488 U.S. 1040 (1989).

Petitioner insists (Br. 42) that Mt. Clemens cannot

allow an employee to establish the extent of his un-

compensated work based on the amount of time that

“a different employee” spent performing “different

activities” or support an award of damages based on

“averages.” But those arguments echo the stringent

standard of proof rejected in Mt. Clemens itself. Like

petitioner, the court of appeals in that case had em-

phasized that the uncompensated activities at issue

“varied from department to department, and from job

to job within the department,” and like petitioner the

court of appeals had insisted that such variation re-

quired individualized proof rather than reliance on an

“estimated average of overtime worked.” Mt. Clem-

ens Pottery Co. v. Anderson, 149 F.2d 461, 462-465

(6th Cir. 1945). But this Court emphatically disap-

proved that “improper standard of proof,” explaining

that it would thwart enforcement of the FLSA and

impermissibly penalize employees for their employers’

recordkeeping violations. Mt. Clemens, 328 U.S. at

686-687.

The estimates offered by respondents’ expert nec-

essarily reflected some imprecision. But the initial

burden under Mt. Clemens “is a minimal one” and

tolerates such uncertainty. Secretary of Labor v.

DeSisto, 929 F.2d 789, 792 (ist Cir. 1991). The obliga-

tion to come forward with more precise estimates then

shifts to the employer, who “bear|s] the lion’s share of

the burden,” ibid., because the employer’s record-

keeping violation created the uncertainty in the first

place and because the employer is best positioned to

offer evidence of the “amount of work performed.”

Mt. Clemens, 328 U.S. at 687. Accordingly, courts

have consistently held that Mt. Clemens permits em-

ployees to rely on inferences from average working

times—including average times spent “donning and

doffing” by large groups of workers at meat-

processing plants. Perez v. Mountaire Farms, Inc.,

650 F.3d 350, 372 (4th Cir. 2011), cert. denied, 132 S.

Ct. 1634 (2012); see also, e.g., Garcia v. Tyson Foods,

Ine., 770 F.3d 1300, 1306-1307 (10th Cir. 2014).

It is of course true that the employees invoking Mt.

Clemens must have engaged in sufficiently compara-

ble work to allow the factfinder to draw reasonable

inferences based on their representative proof. But

the jury permissibly concluded that such inferences

were reasonable here. In arguing otherwise, petition-

er exaggerates the differences among class members.

For example, petitioner places great weight (Br. 30-

31) on the variation suggested by the outlier donning

and doffing times observed in the study performed by

respondents’ expert. But the expert explained that

most of his observations were “clustered around the

average|s],” and the jury had a list of all the expert’s

observations and was able to evaluate that claim for

itself. J.A. 348; see Pl. Ex. 242. Similarly, petitioner

emphasizes (Br. 29-31) that employees wore varying

combinations of protective equipment. But the dis-

trict court, in certifying the class, found that the vari-

ation was “limited” and that there were “far more

factual similarities than dissimilarities.” Pet. App.

89a, 10la. The jury evidently agreed, finding that

class members were sufficiently similar to permit

reasonable inferences based on respondents’ class-

wide proof. Indeed, trial evidence showed that em-

ployees frequently rotated between jobs requiring

different equipment, meaning that the variation

among employees was smaller than the variation

among jobs. J.A. 210, 224-225, 234.

Petitioner therefore is wrong to suggest (Br. 42-44)

that this case is comparable to Espenscheid v. Di-

rectSat USA, LLC, 705 F.3d 770 (7th Cir. 2013).

There, the plaintiffs proposed to use a “small, unrep-

resentative sample” of 42 hand-picked employees to

establish the amount of work performed by more than

2000 employees who worked widely varying hours in

different locations. Jd. at 774-775. Petitioner’s at-

tempt to depict equally great differences among its

employees is implausible—particularly because for

much of the class period petitioner itself paid all class

members exactly the same amount (four minutes per

day) to cover pre- and post-shift activities. J.A. 121.

b. Petitioner also asserts (Br. 41) that the Mt.

Clemens framework applies only to a determination of

damages and not where, as in many overtime cases,

proving the extent of unrecorded work is also a factor

in determining liability. Petitioner therefore suggests

that class members should have been required to

establish liability—i.e., the existence of some unpaid

work in excess of 40 hours in at least one workweek—

on an individualized basis.

It is well-settled, however, that Mt. Clemens per-

mits employees to use representative evidence to

establish the extent of their unrecorded work when

that fact is relevant to liability as well as damages.

This Court held that employees’ initial burden is to

establish that they “ha[ve] in fact performed work for

which {they were] improperly compensated” and to

provide “sufficient evidence to show the amount and

extent of that work as a matter of just and reasonable

inference.” 328 U.S. at 687. But as Mt. Clemens itself

illustrates, both of those showings can be made with

representative proof. In that case, the Court found

that 300 workers had carried their burden using rep-

resentative testimony from eight employees. See pp.

5-6, supra. A rule requiring individualized evidence to

establish an overtime violation with respect to each

employee would contradict the central teaching of this

Court’s decision, which is that an employee’s “burden

of proving that he performed work for which he was

not properly compensated” must be set with “|dJue

regard” to the fact that “it is the employer who has

the duty under [29 U.S.C. 211(c)] to keep proper rec-

ords.” Mt. Clemens, 328 U.S. at 687.°

Lower courts have consistently held that the Mt.

Clemens framework permits the use of inferences

from representative proof to establish both liability

and damages. See, e.g., Morgan, 551 F.3d at 1278 (Mt.

Clemens establishes a means to “prove an FLSA vio-

lation”); SNET, 121 F.3d at 66 (Mt. Clemens permits

reasonable inferences related to “violations of the Act

and the amount of an award”) (quoting Martin v.

Selker Bros., 949 F.2d 1286, 1296-1297 (3d Cir. 1991));

DeSisto, 929 F.2d at 792 (“It is well established that

not all employees need testify in order to prove

[FLSA] violations.”). Consistent with that precedent,

* Petitioner relies (Br. 41) on this Court's statement that an ap-

proximate award of damages is permissible because liability is

certain and “[t}he uncertainty lies only in the amount of damages.”

Mt. Clemens, 328 U.S. at 688. But that statement reflects the fact

that if a court awards damages at the third step of the Mt. Clem-

ens burden-shifting framework, the employees have by definition

established a statutory violation at the first two steps. It does not

foreclose the use of appropriate representative evidence to estab

lish a violation in the first place. SNET, 121 F.3d at 69.

the jury in this case was instructed, without objection,

that it was required to find by a preponderance of the

evidence that the class members “ha[d] been under-

paid,” but that it could make that finding as to absent

class members based on “inference” from “repre-

sentative evidence.” J.A. 471-472; see J.A. 464.

In addition, the jury’s findings regarding compen-

sable activities and the undisputed evidence regarding

petitioner’s pay practices indicate that all class mem-

bers performed some unpaid work, even setting aside

respondents’ proof of the amount of time required for

pre- and post-shift activities. At various points during

the class period, petitioner paid certain employees K-

code time to compensate for donning and doffing

knife-specific protective gear, but before 2007 those

payments did not include any allowance for compen-

sable time walking to and from the locker rooms. J.A.

121-122. In addition, all class members were required

to wear a basic set of sanitary and protective equip-

ment. J.A. 119. The jury found that donning and

doffing that equipment was compensable, but peti-

tioner never included it in K-code time. J.A. 120-122,

486-487. Accordingly, so long as a class member oth-

erwise worked at least 40 hours in a workweek, his

entitlement to at least some unpaid overtime followed

directly from the jury’s findings on compensability.

And the evidence further established that class mem-

bers typically worked at least five (and often six)

eight-hour shifts per workweek. J.A. 122, 326, 435.°

* The evidence indicated that approximately 200 class members

were not entitled to any overtime pay, and that other class mem-

bers were owed only small amounts. J.A. 414-415. Respondents’

expert explained that those individuals likely worked part time or

B. Respondents’ Suit Was Properly Maintained As An

FLSA Collective Action

Although petitioner principally challenges the cer-

tification of the Rule 23(b)(3) class, it also briefly

contends (Br. 25) that the FLSA collective action

should not have been allowed to proceed because the

standards for a collective action “can be no less strin-

gent” than those in Rule 23(b)(3). This Court need not

decide that question because, as demonstrated above,

Rule 23(b)(3) was satisfied here. But if the Court does

address the issue, it should hold that a collective ac-

tion need not conform to the reticulated requirements

of Rule 23.

The FLSA confers on employees a “right” to bring

a collective action. 29 U.S.C. 216(b). That “explicit

statutory direction of a single [FLSA] action for mul-

tiple [FLSA] plaintiffs,” Hoffmann-La Roche Inc. v.

Sperling, 493 U.S. 165, 172 (1989), does not condition

employees’ right to proceed collectively on any show-

ing beyond a demonstration that they are “similarly

situated.” To interpret Section 216(b) by incorporat-

ing the requirements of Rule 23, which was adopted

decades later, “would effectively ignore Congress’

directive” that a different standard applies. Thiessen

v. General Elec. Capital Corp., 267 F.3d 1095, 1105

(10th Cir. 2001), cert. denied, 536 U.S. 934 (2002). It

would also contravene the Advisory Committee’s ad-

monition that “[Section] 216(b) [was] not intended to

be affected by Rule 23.” Fed. R. Civ. P. 23 advisory

committee’s note (1966).

were employed by petitioner for only a short period. J.A. 409-410,

429-430.

Rule 23(b)(3) embodies a different standard be-

cause “Rule 23 actions are fundamentally different

from collective actions.” Genesis Healthcare Corp. v.

Symezyk, 133 8. Ct. 1523, 1529 (2013). Section 216(b)

is not a procedure for litigating the rights of absent

class members, but rather a mechanism for allowing

multiple employees to join an action as “party plain-

tiff[s].” 29 U.S.C. 216(b). And because Section 216(b)

sets forth Congress’s “policy that [FLSA] plaintiffs

should have the opportunity to proceed collectively,”

this Court has emphasized that its “broad remedial

goal * * * should be enforced to the full extent of its

terms.” Hoffmann-La Roche, 493 U.S. at 170, 173.

Consistent with that understanding, the great

weight of authority holds that “the FLSA’s ‘similarly

situated’ requirement is less demanding than Rule

23.” 7B Charles Alan Wright et al., Federal Practice

and Procedure § 1807 (3d ed. Supp. 2015); see, e.¢.,

O'Brien, 575 F.3d at 585-586; Grayson v. K Mart

Corp., 79 F.3d 1086, 1096 © n.12 (llth Cir.), cert.

denied, 519 U.S. 982, and 519 U.S. 987 (1996); but see

Espenscheid, 705 F.3d at 772. Rather than importing

Rule 23(b)(3)'s predominance requirement, courts

hearing collective actions consider factors including

the similarity of the “factual and employment settings

of the individual plaintiffs,” any defenses “individual

to each plaintiff,” and “fairness and procedural con-

siderations.” Thiessen, 267 F.3d at 1103 (citation

omitted); Wages and Hours § 9.02[3](b]{i], at 9-20.

The district court considered those factors here

and correctly concluded that a collective action was

appropriate. Pet. App. 69a-90a. The opt-in plaintiffs

worked in the same plant, were paid under the same

unlawful policy, and performed comparable unpaid

work. A suit brought by such employees has long

been a paradigmatic example of a collective action—as

Mt. Clemens itself illustrates. A rule that variations

in working time preclude such employees from vindi-

cating their rights in a single suit would drain the

collective-action procedure of much of its function and

disserve the “broad remedial goal” of Section 216(b).

Hoffmann-La Roche, 493 U.S. at 173.

Il. THE PRESENCE OF EMPLOYEES WHO WERE UL-

TIMATELY SHOWN TO HAVE NO RIGHT TO RECOV-

ER DID NOT REQUIRE DECERTIFICATION OF THE

CLASS AND COLLECTIVE ACTIONS

Although respondents’ trial evidence established

that all class members engaged in some unpaid work,

it also indicated that approximately 200 of them had

no right to recover overtime because they never

worked more than 4¢ hours in a workweek. J.A. 414-

415. Petitioner could nave sought to amend the class

to remove those individuals or to structure the trial in

a manner that would have prevented them from shar-

ing in any award. But it failed to do so, and it may not

invoke the result of its own tactical decisions as a

basis for decertification after an unfavorable verdict.

A. The Possibility That Some Class Members May Ulti-

mately Be Found To Have No Right To Recover Does

Not Preclude Certification Of A Rule 23 Class

1. In’ seeking certiorari, petitioner asserted

(Pet. 26) that a Rule 23 class may not be certified if it

“includes members who were not injured and thus

have no claim for damages.” Petitioner has now es-

sentially abandoned that position, acknowledging

(Br. 49) that a class may be certified even “in the

absence of proof that all class members were injured.”

The Court may therefore wish to dismiss the second

question presented as improvidently granted. Cf. City

& County of S.F. v. Sheehan, 135 8S. Ct. 1765, 1772-

1774 (2015).

2. Any consideration of that question in this case

would require two important clarifications.

First, petitioner at times “confuses weakness on

the merits with absence of Article III standing.”

Davis v. United States, 131 S. Ct. 2419, 2434 n.10

(2011); see Pet. Br. 20-21, 44-45. Class members who

did not work more than 40 hours in a workweek failed

to establish one of the elements of an FLSA overtime

claim. 29 U.S.C. 207(a)(1). Ordinarily, however,

“(t]he question whether [parties] are entitled to the

relief that they seek goes to the merits, not to stand-

ing.” Monsanto Co. v. Geertson Seed Farms, 561 U.S.

139, 151 n.1 (2010). Article III does not require dis-

missal for lack of jurisdiction every time an FLSA

plaintiff fails to prove his case.

Second, many of the decisions cited in the petition

considered whether a court may certify a class if it is

clear at the outset that the class definition includes

individuals who have no injury or lack a colorable

legal claim. See, e.g., Kohen v. Pacific Inv. Mgmt.

Co., 571 F.3d 672, 676 (7th Cir. 2009), cert. denied, 559

U.S. 962 (2010). Here, in contrast, petitioner relies

(Br. 52) on the fact that the evidence ultimately intro-

duced at trial] established that some class members

lacked a right to relief.

3. Petitioner was correct to abandon its contention

that the possible presence of such individuals pre-

cludes class certification at the outset. Provided that

the requirements of Rule 23 are otherwise satisfied, a

class may be certified even if none of its members

ultimately recover because the defendant prevails on

the merits. Amgen, 133 S. Ct. at 1197 & n.5. It may

also be appropriate—again, assuming compliance with

Rule 23—to certify a class even where some members’

claims may ultimately fail for individual reasons.

Halliburton Co. v. Erica P John Fund, Inc., 134 S.

Ct. 2398, 2412 (2014). Indeed, requiring that a class

be defined to include only individuals with meritorious

claims would violate the rule that courts may not cer-

tify a “fail-safe” class “defined in terms of success on

the merits.” Mullins v. Direct Digital, LLC, 795 F.3d

654, 657 (7th Cir. 2015).

B. The Presence Of Some Members Who Were Shown To

Have No Right To Recover Did Not Require Decertifi-

cation Of The Class And Collective Actions

Petitioner now advances the more modest argu-

ment (Br. 49) that a Rule 23(b)(3) class may be certi-

fied and maintained only if there is “some mechanism”

to ensure that individuals who are shown to have no

right to relief neither “contribute to the size of any

damage award” nor “recover such damages.” Peti-

tioner is of course correct that a defendant should not

be required to pay damages to individuals who are

shown to have no right to recover, and a court consid-

ering whether to certify a Rule 23(b)(3) class should

take into account the availability of mechanisms for

identifying such individuals when assessing “the likely

difficulties in managing a class action.” Fed. R. Civ.

P 23(b)(3)(D). In this case, however, such mecha-

nisms were available, and they went unused only be-

cause of petitioner’s own choices.

Here, the most sensible approach may have been to

structure the trial so that the jury first made findings

about the compensability of the activities at issue and

“the number of minutes it takes to perform [them].”

J.A. 112-113. Caleulating the “individual backpay

amount for each class member” would then have been

“ministerial.” J.A. 113. Respondents proposed exact-

ly that approach, ibid., which would have ensured that

only class members with meritorious claims received

an award. But petitioner opposed that proposal, J.A.

115, and asked that the jury be permitted to make

only a lump-sum award to the entire class, J.A. 104.

Alternatively, when respondents’ trial evidence re-

vealed that some class members were not entitled to

recover, petitioner could have moved to exclude those

individuals from the class. Fed. R. Civ. P. 23(¢)(1)(C).

But petitioner did not do that either.

Petitioner’s contention that the inclusion of some

class members who are not entitled to relief requires

that the entire class be decertified is also unavailing

because the jury instructions ensured that those indi-

viduals did not contribute to the size of the award.

Pet. App. 10a. At petitioner’s request, the district

court instructed the jury that backpay was owed only

for “hours worked in excess of 40 hours in each work-

week” and that “[a]ny employee who has already re-

ceived full compensation * * * is not entitled to re-

cover any damages.” J.A. 481; see J.A. 471. The

presence of such employees thus had no effect on

petitioner’s liability to the class and is relevant only to

allocation of the award among the class members—a

step that has not yet occurred and in which petitioner

has no stake. L’rethane, 768 F.3d at 1269.

Finally, petitioner's suggestion (Br. 45, 51) that the

presence of employees who lacked meritorious claims

required “decertification” of the FLSA collective

action is particularly unsound. A collective action

“does not produce a class with an independent legal

status.” Genesis Healthcare, 133 S. Ct. at 1530. In-

stead, it authorizes similarly situated employees to

join an action as “party plaintiffls].” 29 U.S.C. 216(b).

A showing that some of those plaintiffs lack a right to

relief would be grounds for dismissing them from the

action or rejecting their claims on the merits, but

provides no basis for preventing the remaining plain-

tiffs from going forward. O'Brien, 575 F.3d at 586.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

DONALD B. VERRILLI, JR.

M. PATRICIA SMITH Solicitor General

Solicitor of Labor EDWIN S. KNEEDLER

JENNIFER S. BRAND Deputy Solicitor General

Associate Solicitor BRIAN H. FLETCHER

PAUL L. FRIEDEN Assistant to the Solicitor

Counsel for Appellate General

Litigation

LAURA M. MOSKOWITZ

Senior Attorney

Department of Labor

SEPTEMBER 2015

APPENDIX

l. 29 U.S.C. 206\4)(1) provides:

Minimum wage

(a) Employees engaged in commerce; home workers in

Puerto Rico and Virgin Islands; employees in Ameri-

can Samoa; seamen on American vessels; agricultural

employees

Every employer shall pay to each of his employees

who in any workweek is engaged in commerce or in the

production of goods for commerce, or is employed in

an enterprise engaged in commerce or in the produc-

tion of goods for commerce, wages at the following

rates:

(1) except as otherwise provided in this section,

not less than—

(A) $5.85 an hour, beginning on the 60th day

after May 25, 2007;

(B) $6.55 an hour, beginning 12 months af-

ter that 60th day; and

ter that 60th day;

(la)

2. 29 U.S.C. 207(a)(1) provides:

Maximum hours

(a) Employees engaged in interstate commerce; addi-

tional applicability to employees pursuant to sub-

sequent amendatory provisions

(1) Except as otherwise provided in this section, no

employer shall employ any of his employees who in any

workweek is engaged in commerce or in the production

of goods for commerce, or is employed in an enterprise

engaged in commerce or in the production of goods for

commerce, for a workweek longer than forty hours un-

less such employee receives compensation for his em-

ployment in excess of the hours above specified at a

rate not less than one and one-half times the regular

rate at which he is employed.

3. 29 U.S.C. 211(c) provides:

Collection of data

Every employer subject to any provision of this

chapter or of any order issued under this chapter shall

make, keep, and preserve such records of the persons

employed by him and of the wages, hours, and other

conditions and practices of employment maintained by

him, and shall preserve such records for such periods

of time, and shall make such reports therefrom to the

Administrator as he shall prescribe by regulation or

order as necessary or appropriate for the enforcement

of the provisions of this chapter or the regulations or

orders thereunder. The employer of an employee

who performs substitute work described in section

207(p)(3) of this title may not be required under this

subsection to keep a record of the hours of the substi-

tute work.

4. 29U.S8.C. 216(b) provides:

Penalties

(b) Damages; right of action; attorney's fees and costs;

termination of right of action

Any employer who violates the provisions of section

206 or section 207 of this title shall be liable to the em-

ployee or employees affected in the amount of their un-

paid minimum wages, or their unpaid overtime compen-

sation, as the case may be, and in an additional equal

amount as liquidated damages. Any employer who vio-

lates the provisions of section 215(a)(3) of this title shall be

liable for such legal or equitable relief as may be appro-

priate to effectuate the purposes of section 215(a)(3) of

this title, including without limitation employment, rein-

statement, promotion, and the payment of wages lost and

an additional equal amount as liquidated damages. An

action to recover the liability prescribed in either of the

preceding sentences may be maintained against any em-

ployer (including a public agency) in any Federal or State

court of competent jurisdiction by any one or more em-

ployees for and in behalf of himself or themselves and

other employees similarly situated. No employee shall

be a party plaintiff to any such action unless he gives his

consent in writing to become such a party and such con-

sent is filed in the court in which such action is brought.

The court in such action shall, in addition to any judgment

awarded to the plaintiff or plaintiffs, allow a reasonable

attorney’s fee to be paid by the defendant, and costs of the

action. The right provided by this subsection to bring an

action by or on behalf of any employee, and the right of

any employee to become a party plaintiff to any such ac-

tion, shall terminate upon the filing of a complaint by the

Secretary of Labor in an action under section 217 of this

title in which (1) restraint is sought of any further delay in

the payment of unpaid minimum wages, or the amount of

unpaid overtime compensation, as the case may be, owing

to such employee under section 206 or section 207 of this

title by an employer liable therefor under the provisions

of this subsection or (2) legal or equitable relie* is sought

as a result of alleged violations of section 215(a)(3) of this

title.

5. 29C.F.R. 516.2(a) provides:

Employees subject to minimum wage or minimum wage

and overtime provisions pursuant to section 6 or sections 6

and 7(a) of the Act.

(a) Items required. Every employer shall main-

tain and preserve payroll or other records containing the

following information and data with respect to each em-

ployee to whom section 6 or both sections 6 and 7(a) of the

Act apply:

(1) Name in full, as used for Social Security record-

keeping purposes, and on the same record, the employee's

identifying symbol or number if such is used in place of

name on any time, work, or payroll records,

(2) Home address, including zip code,

(3) Date of birth, if under 19,

(4) Sex and occupation in which employed (sex may

be indicated by use of the prefixes Mr., Mrs., Miss., or

Ms.) (Employee’s sex identification is related to the equal

pay provisions of the Act which are administered by the

Equal Employment Opportunity Commission. Other

equal pay recordkeeping requirements are contained in

29 CFR part 1620.)

(5) Time of day and day of week on which the em-

ployee’s workweek begins (or for employees employed

under section 7(k) of the Act, the starting time and length

of each employee’s work period). Ifthe employee is part

of a workforce or employed in or by an establishment all

of whose workers have a workweek beginning at the same

time on the same day, a single notation of the time of the

day and beginning day of the workweek for the whole

workforce or establishment will suffice,

(6)(i) Regular hourly rate of pay for any workweek in

which overtime compensation is due under section 7(a) of

the Act, (ii) explain basis of pay by indicating the mone-

tary amount paid on a per hour, per day, per week, per

piece, commission on sales, or other basis, and (iii) the

amount and nature of each payment which, pursuant to

section 7(e) of the Act, is excluded from the “regular rate”

(these records may be in the form of vouchers or other

payment data),

(7) Hours worked each workday and total hours

worked each workweek (for purposes of this section, a

“workday” is any fixed period of 24 consecutive hours and

a “workweek” is any fixed and regularly recurring period

of 7 consecutive workdays),

(8) Total daily or weekly straight-time earnings or

wages due for hours worked during the workday or

workweek, exclusive of premium overtime compersation,

(9) Total premium pay for overtime hours. This

amount excludes the straight-time earnings for overtime

hours recorded under paragraph (a)(8) of this section,

(10) Total additions to or deductions from wages paid

each pay period including employee purchase orders or

wage assignments. Also, in individual employee records,

the dates, amounts, and nature of the items which make

up the total additions and deductions,

(11) Total wages paid each pay period,

(12) Date of payment and the pay period covered by

payment.

6. 29 C.F.R. 785.19(a) provides:

Meal.

(a) Bona fide meal periods. Bona fide meal peri-

ods are not worktime. Bona fide meal periods do not

include coffee breaks or time for snacks. These are rest

periods. The employee must be completely relieved from

duty for the purposes of eating regular meals. Ordinar-

ily 30 minutes or more is long enough for a bona fide meal

period. A shorter period may be long enough under spe-

cial conditions. The employee is not relieved if he is re-

quired to perform any duties, whether active or inactive,

while eating. For example, an office employee who is re-

quired to eat at his desk or a factory worker who is re-

quired to be at his machine is working while eating.

(Culkin v. Glenn L. Martin, Nebraska Co., 97 F. Supp.

661 (D. Neb. 1951), aff'd 197 F. 2d 981 (C.A. 8, 1952), cert.

denied 344 U.S. 888 (1952); Thompson v. Stock & Sons,

Inc., 93 F. Supp. 213 (E.D. Mich 1950), aff'd 194 F. 2d 493

(C.A. 6, 1952); Biggs v. Joshua Hendy Corp., 183 F.2d 515

(C. A. 9, 1950), 187 F. 2d 447 (C.A. 9, 1951); Walling v.

Dunbar Transfer & Storage Co., 3 W.H. Cases 284; 7

Labor Cases para. 61.565 (W.D. Tenn. 1943); Lofton v.

Seneca Coal and Coke Co., 2 W.H. Cases 669; 6 Labor

Cases para. 61,271 (N.D. Okla. 1942); aff'd 136 F. 2d 359

(C.A. 10, 1943); cert. denied 320 U.S. 772 (1943); Mitchell

v. Tampa Cigar Co., 36 Labor Cases para. 65, 198, 14

W.H. Cases 38 (S.D. Fla. 1959); Douglass v. Hurwitz Co.,

145 F. Supp. 29, 13 W.H. Cases (E.D. Pa. 1956))

7. 29 C.F.R. 785.47 provides:

Where records show insubstantial or insignificant periods

of time.

In recording working time under the Act, insubstan-

tial or insignificant periods of time beyond the scheduled

working hours, which cannot as a practical administrative

matter be precisely recorded for payroll purposes, may be

disregarded. The courts have held that such trifles are

de minimis. (Anderson v. Mt. Clemens Pottery Co., 328

U.S. 680 (1946)) This rule applies only where there are

uncertain and indefinite periods of time involved of a few

seconds or minutes duration, and where the failure to

count such time is due to considerations justified by in-

dustrial realities. An employer may not arbitrarily fail to

count as hours worked any part, however small, of the

employee's fixed or regular working time or practically

ascertainable period of time he is regularly required to

spend on duties assigned to him. See Glenn L. Martin

Nebraska Co. v. Culkin, 197 F. 2d 981, 987 (C.A. 8, 1952),

cert. denied, 344 U.S. 866 (1952), rehearing denied, 344

U.S. 888 (1952), holding that working time amounting to

$1 of additional compensation a week is “not a trivial

matter to a workingman,” and was not de minimis; Addt-

son v. Huron Stevedoring Corp., 204 F. 2d 88, 95 (C.A. 2,

1953), cert. denied 346 U.S. 877, holding that “To disre-

gard workweeks for which less than a dollar is due will

produce capricious and unfair results.” Hawkins v. E. I.

du Pont de Nemours & Co., 12 W.H. Cases 448, 27 Labor

Cases, para. 69,094 (E.D. Va., 1955), holding that 10 min-

utes a day is not de minimis.

8. 29 C.F.R. 790.6 provides:

Periods within the “workday” unaffected.

(a) Section 4 of the Portal Act does not affect the

computation of hours worked within the “workday”

proper, roughly described as the period “from whistle to

whistle,” and its provisions have nothing to do with the

compensability under the Fair Labor Standards Act of

any activities engaged in by an employee during that

period.“ Under the provisions of section 4, one of the

conditions that must be present before “preliminary” or

“postliminary” activities are excluded from hours worked

is that they ‘occur either prior to the time on any partic-

ular workday at which the employee commences, or

subsequent to the time on any particular workday at

which he ceases’ the principal activity or activities which

he is employed to perform. Accordingly, to the extent

that activities engaged in by an employee occur after the

employee commences to perform the first principal activ-

ity on a particular workday and before he ceases the

performance of the last principal activity on a particular

workday, the provisions of that section have no applica-

tion. Periods of time between the commencement of the

employee's first principal activity and the completion of

his last principal activity on any workday must be in-

cluded in the computation of hours worked to the same

extent as would be required if the Portal Act had not been

enacted.* The principles for determining hours worked

within the “workday” proper will continue to be those

established under the Fair Labor Standards Act without

“ The report of the Senate Judiciary Committee states (p. 47),

“Activities of an employee which take place during the workday are

*** not affected by this section (section 4 of the Portai-to-Portal

Act, as finally enacted) and such activities will continue to be com-

pensable or not without regard to the provisions of this section.”

* See Senate Report, pp. 47, 48; Conference Report, p. 12: state-

ment of Senator Wiley, explaining the conference agreement to the

Senate, 93 Cong. Rec. 4269 (also 2084, 2085); statement of Repre-

sentative Gwynne, explaining the conference agreement to the

House of Representatives, 93 Cong. Rec. 4388; statements of Sen-

ator Cooper, 93 Cong. Rec. 2293-2294, 2296-2300; statements of

Senator Donnell, 98 Cong. Rec. 2181, 2182, 2362.

10a

reference to the Portal Act,* which is concerned with this

question only as it relates to time spent outside the

“workday” in activities of the kind described in section

(b) “Workday” as used in the Portal Act means, in

general, the period between the commencement and com-

pletion on the same workday of an employee's principal

activity or activities. It includes all time within that

period whether or not the employee engages in work

throughout all of that period. For example, a rest period

or a lunch period is part of the “workday”, and section 4 of

the Portal Act therefore plays no part in determining

whether such a period, under the particular circum-

stances presented, is or is not compensable, or whether

it should be included in the computation of hours

worked.* If an employee is required to report at the

actual place of performance of his principal activity at a

certain specific time, his “workday” commences at the

time he reports there for work in accordance with the

employer's requirement, even though through a cause

beyond the employee's control, he is not able to commence

performance of his productive activities until a later time.

In such a situation the time spent waiting for work would

“ The determinations of hours worked under the Fair Labor

Standards Act, as amended is discussed in part 785 of this chapter.

* See statement of Senator Wiley explaining the conference

agreement to the Senate, 93 Cong. Rec. 3269. See also the discus-

sion in $§ 790.7 and 790.8.

* Senate Report, pp. 47, 48. Cf. statement of Senator Wiley ex-

plaining the conference agreement to the Senate, 93 Cong. Rec.

4269; statement of Senator Donnell, 93 Cong. Rec. 2362; statements

of Senator Cooper, 93 Cong. Rec. 2297, 2298.

lla

be part of the workday,“ and section 4 of the Portal Act

would not affect its inclusion in hours worked for pur-

poses of the Fair Labor Standards Act.

10. Fed. R. Civ. P. 23 provides in pertinent part:

Class Actions

(a)

(b)

Prerequisites. One or more members of a class may

sue or be sued as representative parties on behalf of

all members only if:

(1) the class is so numerous that joinder of all

members is impracticable;

(2) there are questions of law or fact common to

the class;

(3) the claims or defenses of the representative

parties are typical of the claims or defenses

of the class; and

(4) the representative parties will fairly and ad-

equately protect the interests of the class.

Types of Class Actions. A class action may be

maintained if Rule 23(a) is satisfied and if:

* 7 * * *

(3) the court finds that the questions of law or

fact common to class members predominate

over any questions affecting only individual

* Colloquy between Senators Cooper and McGrath, 93 Cong.

Rec. 2297, 2298.

12a

members, and that a class action is superior

to other available methods for fairly and ef-

ficiently adjudicating the controversy. The

matters pertinent to these findings include:

(A)

(B)

(C)

(D)

the class members’ interests in individu-

ally controlling the prosecution or de-

fense of separate actions;

the extent and nature of any litigation

concerning the controversy already be-

gun by or against class members;

the desirability or undesirability of con-

centrating the litigation of the claims in

the particular forum; and

the likely difficulties in managing a class

action.

Judgment; Issues Classes; Subclasses.

(1) Certification Order.

(A)

(B)

Time to Issue. At an early practicable

time after a person sues or is sued as a

class representative, the court must de-

termine by order whether to certify the

action as a class action.

Defining the Class; Appointing Class

Counsel. An order that certifies a class

action must define the class and the class

claims, issues, or defenses, and must ap-

point class counsel under Rule 23(g).

(C)

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Altering or Amending the Order. An

order that grants or denies class certifi-

cation may be altered or amended before

final judgment.

(2) Notice.

(A)

(B)

For (b)(1) or (b)(2) Classes. For any

class certified under Rule 23(b)(1) or

(b)(2), the court may direct appropriate

notice to the class.

For (b)(3) Classes. For any class certi-

fied under Rule 23(b)(3), the court must

direct to class members the best notice

that is practicable under the circumstanc-

es, including individual notice to all mem-

bers who can be identified through rea-

sonable effort. The notice must clearly

and concisely state in plain, easily under-

stood language:

(i) the nature of the action;

(ii) the definition of the class certified:

(iii) the class claims, issues, or defenses;

(iv) that a class member may enter an

appearance through an attorney if

the member so desires;

(v) that the court will exclude from the

class any member who requests ex-

clusion;

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(vi) the time and manner for requesting

exclusion; and

(vii) the binding effect of a class judg-

ment on members under Rule

23(¢)(3).

(3) Judgment. Whether or not favorable to the

class, the judgment in a class action must:

(A) for any class certified under Rule 23(b)(1)

or (b)(2), include and describe those

whom the court finds to be class mem-

bers; and

(B) for any class certified under Rule

23(b)(3), include and specify or describe

those to whom the Rule 23(c)(2) notice

was directed, who have not requested ex-

clusion, and whom the court finds to be

class members.

(4) Particular Issues. When appropriate, an

action may be brought or maintained as a

class action with respect to particular issues.

(5) Subclasses. When appropriate, a class may

be divided into subclasses that are each

treated as a class under this rule.

* 7 * * *

15a

11. lowa Code 914.3 provides in pertinent part:

Mode of payment

1. An employer shall pay all wages due its em-

ployees, less any lawful deductions specified in section

91A.5, at least in monthly, semimonthly, or biweekly

installments on regular paydays which are at con-

sistent intervals from each other and which are desig-

nated in advance by the employer. However, if any of

these wages due its employees are determined on a

commission basis, the employer may, upon agreement

with the employee, pay only a credit against such

wages. If such credit is paid, the employer shall, at

regular intervals, pay any difference between a credit

paid against wages determined on a commission basis

and such wages actually earned on a commission basis.

These regular intervals shall not be separated by more

than twelve months. A regular payday shall not be

more than twelve days, excluding Sundays and legal

holidays, after the end of the period in which the wages

were earned. An employer and employee may, upon

written agreement which shall be maintained as a

record, vary the provisions of the subsection.

* cal * * *

12. lowa Code 914.8 provides:

Damages recoverable by an employee

When it has been shown that an employer has in-

tentionally failed to pay an employee wages or reim-

burse expenses pursuant to section 91A.3, whether as

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the result of a wage dispute or otherwise, the employer

shall be liable to the employee for any wages or ex-

penses that are so intentionally failed to be paid or re-

imbursed, plus liquidated damages, court costs and

any attorney's fees incurred in recovering the unpaid

wages and determined to have been usual and neces-

sary. In other instances the employer shall be liable

only for unpaid wages or expenses, court costs and us-

uai and necessary attorney’s fees incurred in recover-

ing the unpaid wages or expenses.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.