Statistical Evidence in Wage and Hour Class Actions Since Tyson Foods: Impact on Certification and Trial

Disputing or Leveraging Representative Sampling to Prove Classwide Liability and Damages

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Tuesday, June 30, 2020

Recorded event now available

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Course Materials

This CLE course will arm employment counsel with strategic approaches for disputing or leveraging the use of statistical evidence to establish classwide liability in wage and hour actions. The panel will discuss how the lower courts are applying Tyson Foods Inc. v. Bouaphakeo, review statistical sampling techniques relevant to wage and hour cases, and examine best practices for employment counsel going forward.


In 2016 the U.S. Supreme Court ruled against the employer in Tyson Foods Inc. v. Bouaphakeo, holding that statistical sampling was a permissible form of evidence that a jury may consider in determining hours employees worked and to establish classwide liability in an FLSA action.

Attempts to use statistical evidence have long been part of complex wage and hour litigation. In some cases, plaintiffs seek to use the testimony of a representative sample of employees to establish a prima facie case under the FLSA or state wage and hour statutes. As such, defense counsel may challenge the propriety of using statistical sampling and the soundness of any statistical methodology.

Plaintiffs may also attempt to use statistical sampling when the universe of data is not available, or no data is available, to establish liability and class-wide damages. When limited data is available (a sample), plaintiffs may apply inferential statistical analysis to prove/disprove classwide assertions provided the sample meets the criteria of being representative of the population. If no data is available, plaintiffs can utilize a survey of the class members to establish class-wide liability and damages.

Effective defense techniques include contesting whether the use of sampling would be appropriate under the framework established in Tyson Foods, challenging whether the sample used is representative, questioning surveys and their methodology, and arguing that a more individualized determination of liability and damages is required by the Rules Enabling Act or due process.

Listen as our distinguished panel reviews strategic approaches to disputing or leveraging statistical evidence in wage and hour class actions in light of the Tyson Foods ruling. Our panel will discuss how lower courts are applying the ruling, review the uses of representative evidence and statistical sampling techniques relevant to wage and hour cases, and offer best practices for plaintiff and defense counsel.



  1. Review of Tyson Foods Inc. v. Bouaphakeo
  2. How lower courts are applying Tyson Foods
  3. Representative evidence and liability
  4. Plaintiff strategies for leveraging statistical evidence
  5. Defense strategies for attacking statistical evidence


The panel will review these and other key issues:

  • How are lower courts currently applying the decision in Tyson Foods Inc. v. Bouaphakeo?
  • How to meet the Daubert standard to have the statistical analysis admitted under Rule 702.
  • What types of statistics can be introduced during certification and trial, and what are the proper ways of utilization?
  • What are the most effective challenges to the use of statistical sampling?
  • Under what circumstances should counsel advocate for alternative ways to prove damages as opposed to extrapolating from samples?


Mersol, Gregory
Gregory V. Mersol


Mr. Mersol focuses his practice on the resolution of class action and other complex employment disputes. He is a...  |  Read More

Petersen, Jeffrey
Jeffrey S. Petersen, Ph.D.

Allman & Petersen Economics

Mr. Petersen, Ph.D. has served as a statistical and damages expert for plaintiffs and defendants in over 70 class...  |  Read More

Scimone, Michael
Michael J. Scimone

Outten & Golden

Mr. Scimone represents employees in class and collective actions, focusing primarily on wage and hour litigation.

 |  Read More

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