A case being argued Nov. 10 before the U.S. Supreme Court could change how membership in a class is determined. In Tyson Foods, Inc. v. Bouaphakeo, employees  seek approval of a class in which there are significant differences among them.

The question before the court is whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act. In the case, liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample. The court also will consider whether a class action may be certified or maintained, when the class contains hundreds of members who were not injured and should have no legal right to any damages.

Respondents are hourly workers at a Tyson pork-processing facility who allege the company failed to compensate them fully for time spent donning and doffing personal protective equipment and walking to and from their work stations. Not all employees fell into this category, and those that did, did so for varying times. The employees were awarded $5.8 million. A divided Eighth Circuit U.S. Court of Appeals panel affirmed.

HB Litigation Conferences’ Consumer Class Action Conference in Puerto Rico will take a deep dive into this and other issues that impact the landscape for class action litigation.