Five Star Automatic Fire Protection, L.L.C. v. Department of Labor

In Wal-Mart v. Dukes, this Court rejected “Trial by Formula” in disapproving the use of representative testimony for certification of Rule 23 class actions under Title VII of the 1964 Civil Rights Act. In Tyson Foods v. Bouaphakeo, a “doffing and donning” wage and hour case, this Court carved out an apparently limited exception to Wal-Mart v. Dukes where the representative testimony was augmented by broadly applicable statistics, such that the experiences of a subset of employees were probative of the experiences of all of them. In this FLSA action, the Court of Appeals held an employer liable for overtime pay and liquidated damages to 53 employees based solely on the live testimony of only six, plus written DOL statements from two others, which collectively were not proven to be representative of the other 45. In light of Dukes and Tyson Foods, is this an important decision of a federal question in a way that conflicts with relevant decisions of this Court?

In the 1946 case of Anderson v. Mt. Clemens Pottery, when fixed work sites and punch-in time clocks facilitated precise timekeeping, this Court imposed on employers without precise records a harsh burden-shifting rule, effectively requiring them to pay triple time based on employees’ self-serving estimates of unpaid overtime work hours. The modern workforce of shifting disparate work sites and schedules driven by variable work activities bears little resemblance to the mid-1940s. Should this Court abrogate or modify its 75-year-old