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Monroe v. FTS USA, LLC

United States Court of Appeals, Sixth Circuit

June 21, 2017

Edward Monroe, Fabian Moore, and Timothy Williams, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees,
v.
FTS USA, LLC and UniTek USA, LLC, Defendants-Appellants.

         On Remand from the United States Supreme Court. No. 2:08-cv-02100-John Thomas Fowlkes, Jr., District Judge.

         ON SUPPLEMENTAL BRIEF:

          Colin D. Dougherty, Jonathan D. Christman, FOX ROTHSCHILD LLP, Blue Bell, Pennsylvania, Miguel A. Estrada, GIBSON, DUNN & CUTCHER LLP, Washington, D.C., for Appellants.

          William B. Ryan, Bryce W. Ashby, DONATI LAW FIRM, LLP, Memphis, Tennessee, Rachhana T. Srey, NICHOLS KASTER, PLLP, Minneapolis, Minnesota, Adam W. Hansen, APOLLO LAW, LLC, Minneapolis, Minnesota, for Appellees.

          Before: BOGGS, SUTTON, and STRANCH, Circuit Judges.

          OPINION

          STRANCH, Circuit Judge.

          Edward Monroe, Fabian Moore, and Timothy Williams brought this Fair Labor Standards Act (FLSA) claim, on behalf of themselves and others similarly situated, against their employers, FTS USA, LLC and its parent company, UniTek USA, LLC. FTS is a cable-television business for which the plaintiffs work or worked as cable technicians. The district court certified the case as an FLSA collective action, allowing 293 other technicians (collectively, FTS Technicians) to opt in. FTS Technicians allege that FTS implemented a company-wide time-shaving policy that required its employees to systematically underreport their overtime hours. A jury returned verdicts in favor of the class, which the district court upheld before calculating and awarding damages. On appeal, we affirmed the district court's certification of the case as a collective action and its finding that sufficient evidence supported the jury's verdicts, but reversed the district court's calculation of damages.

         FTS and UniTek filed a petition for a writ of certiorari, and the Supreme Court issued a grant, vacate, and remand order (GVR)-granting the petition, vacating our opinion, and remanding the case to this court for further consideration in light of Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. -, 136 S.Ct. 1036 (2016), which the Supreme Court decided after we issued our opinion. See FTS USA, LLC v. Monroe, 137 S.Ct. 590 (2016) (mem.). "[O]ur law is clear that a GVR order does not necessarily imply that the Supreme Court has in mind a different result in the case, nor does it suggest that our prior decision was erroneous." In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 845 (6th Cir. 2013) (collecting cases). Rather, our task following the GVR in this case is to "determine whether our original decision . . . was correct or whether [Tyson] compels a different resolution." Id.

         Upon reconsideration, we find that Tyson does not compel a different resolution; instead, Tyson's ratification of the Mt. Clemens legal framework and validation of the use of representative evidence support our original decision. Therefore, consistent with that opinion, we AFFIRM the district court's certification of the case as a collective action and its finding that sufficient evidence supports the jury's verdicts. We REVERSE the district court's calculation of damages and REMAND the case for recalculation of damages consistent with this opinion.

         I. BACKGROUND

         A. Facts

         FTS contracts with various cable companies, such as Comcast and Time Warner, to provide cable installation and support, primarily in Tennessee, Alabama, Mississippi, Florida, and Arkansas. To offer these services, FTS employs technicians at local field offices, called "profit centers." FTS's company hierarchy includes a company CEO and president, regional directors, project managers at each profit center, and a group of supervisors. FTS Technicians report to the supervisors and project managers. FTS's parent company, UniTek, is in the business of wireless, telecommunication, cable, and satellite services, and provides human resources and payroll functions to FTS.

         All FTS Technicians share substantially similar job duties and are subject to the same compensation plan and company-wide timekeeping system. FTS Technicians report to a profit center at the beginning of each workday, where FTS provides job assignments to individual technicians and specifies two-hour blocks in which to complete certain jobs. Regardless of location, "the great majority of techs do the same thing day in and day out which is install cable." Time is recorded by hand, and FTS project managers transmit technicians' weekly timesheets to UniTek's director of payroll. FTS Technicians are paid pursuant to a piece-rate compensation plan, meaning each assigned job is worth a set amount of pay, regardless of the amount of time it takes to complete the job. The record shows that FTS Technicians are paid by applying a .5 multiplier to their regular rate for overtime hours.

         FTS Technicians presented evidence that FTS implemented a company-wide time-shaving policy that required technicians to systematically underreport their overtime hours. Managers told or encouraged technicians to underreport time or even falsified timesheets themselves. To underreport overtime hours in compliance with FTS policy, technicians either began working before their recorded start times, recorded lunch breaks they did not take, or continued working after their recorded end time.

         FTS Technicians also presented documentary evidence and testimony from technicians, managers, and an executive showing that FTS's time-shaving policy originated with FTS's corporate office. Technicians testified that the time-shaving policy was company-wide, applying generally to all technicians, though not in an identical manner. At meetings, managers instructed groups of technicians to underreport their hours, and managers testified that corporate ordered them to do so. One former manager, Anthony Louden, offered testimony regarding high-level executive meetings. Louden identified overtime and fuel costs as the two leading items that an FTS executive felt it "should be able to manage and cut in order to make a bigger profit." Louden also stated that FTS executives circulated and reviewed technicians' timesheets, "go[ing] into detail on which technician had overtime, and, you know, go[ing] over why this guy had too much overtime and why he didn't have overtime." Technicians testified that they often complained about being obligated to underreport, and FTS's human resources director testified that she received such complaints. No evidence was presented that managers or technicians were disciplined for underreporting time.

         B. Procedural History

         A magistrate judge recommended conditional certification as a FLSA collective action, which the district court adopted. The district court also authorized notice of the collective action to be sent to all potential opt-in plaintiffs. The notice defined eligible class members as any person employed by FTS as a technician at any location across the country in the past three years to the present who were paid by piece-rate and did not receive overtime compensation for all hours worked over 40 per week during that period. A total of 293 technicians ultimately opted in to the collective action.[1]

         The parties originally agreed on a discovery and trial plan, which the trial court adopted by order. Under the parties' agreement, discovery would be limited "to a representative sample of fifty (50) opt-in Plaintiffs, " with FTS Technicians choosing 40 and FTS and UniTek choosing 10. The parties also agreed to approach the district court after discovery regarding "a trial plan based on representative proof" that "will propose a certain number of Plaintiffs from the pool of fifty (50) representative sample Plaintiffs that may be called as trial witnesses."

         Following the completion of discovery, the district court denied FTS and UniTek's motions to decertify the class and for summary judgment, finding that the class members were similarly situated at the second stage of certification. In light of the parties' agreement and the district court's resulting order-under which the litigation proceeded-the court held that it could not "accept Defendants' contention that the parties' stipulated agreement to limit discovery to fifty representative plaintiffs did not also manifest Defendants' acquiescence to a process by which the remaining members of the class would not have to produce evidence as a prerequisite to proceeding to trial on their claims." (R. 238, PageID 5419.) The district court also denied FTS and UniTek's pretrial motion to preclude representative proof at trial because "the class representatives identified by Plaintiff[s] sufficiently represent the class" and "[t]o deny the use of representative proof in this case would undermine the purpose of class wide relief, and would have the effect of decertifying the class." (R. 308, PageID 6822.)

         Accordingly, the collective action proceeded to trial on a representative basis. FTS Technicians identified by name 38 potential witnesses and called 24 witnesses, 17 of whom were class-member technicians. FTS and UniTek identified all 50 representative technicians as potential witnesses, but called only four witnesses-all FTS executives and no technicians.

         The district court explained the representative nature of the collective action to the jury, both before the opening argument and during its instructions, noting that FTS Technicians seek "to recover overtime wages that they claim [FTS and UniTek] owe them and the other cable technicians who have joined the case." (R. 450, PageID 10646-47; R. 463, PageID 12253.) The jury instructions specified that the named plaintiffs brought their claim on behalf of and collectively with "approximately three hundred plaintiffs who have worked in more than a dozen different FTS field offices across the country." (R. 463, PageID 12264.) The court also set out how the case would be resolved, instructing that FLSA procedure "allows a small number of representative employees to file a lawsuit on behalf of themselves and others in the collective group"; that the technicians who "testified during this trial testified as representatives of the other plaintiffs who did not testify"; and that "[n]ot all affected employees need testify to prove their claims" because "non-testifying plaintiffs who performed substantially similar job duties are deemed to have shown the same thing." (Id. at 12264-65.) The district court then charged the jury to determine whether all FTS Technicians "have proven their claims" by considering whether "the evidence presented by the representative plaintiffs who testified establishes that they worked unpaid overtime hours and are therefore entitled to overtime compensation." (Id. at 12265.) If the jury answers in the affirmative, the court explained, "then those plaintiffs that you did not hear from are also deemed by inference to be entitled to overtime compensation." (Id. at 12265-66.)

         The jury returned verdicts of liability in favor of the class, finding that FTS Technicians worked in excess of 40 hours weekly without being paid overtime compensation and that FTS and UniTek knew or should have known and willfully violated the law. The jury determined the average number of unrecorded hours worked per week by each testifying technician-all of whom were representative and were called on behalf of themselves and all similarly situated employees, as authorized by 29 U.S.C. § 216(b) and instructed by the district court. As indicated to the parties and the jury, the court used the jury's factual findings to calculate damages for all testifying and nontestifying technicians in the opt-in collective action. The trial court ruled that the formula for calculating uncompensated overtime should use a 1.5 multiplier, apparently based on the assumption that FTS and UniTek normally used that multiplier.

         The district court[2] held a post-trial status conference and suggested that a second jury could be convened to decide the issue of damages. FTS and UniTek opposed a second jury, arguing that plaintiffs had failed to prove damages and judgment should be entered, "either for the defense or liability for plaintiffs . . . with zero damages." After the court rejected this proposal, FTS and Unitek filed motions for judgment as a matter of law, a new trial, and decertification, all of which were denied. Finding that FTS Technicians had met their burden on damages, the court adopted their proposed order, using an "estimated-average" approach to calculate damages and employing a multiplier of 1.5.

         II. ANALYSIS

         FTS and UniTek challenge the certification of the case as a collective action pursuant to 29 U.S.C. § 216(b), the sufficiency of the evidence as presented at trial, the jury instruction on commuting time, and the district court's calculation of damages. After a review of the legal framework for collective actions in our circuit, we turn to each of these arguments.

         A. Legal Framework

         1. Certification and Burden of Proof Under the FLSA

         Under the FLSA, an employer generally must compensate an employee "at a rate not less than one and one-half times the regular rate at which he is employed" for work exceeding forty hours per week. 29 U.S.C. § 207(a)(1). Labor Department regulations clarify, however, that in a piece-rate system only "additional half-time pay" is required for overtime hours. 29 C.F.R. § 778.111(a).

         "Congress passed the FLSA with broad remedial intent" to address "unfair method[s] of competition in commerce" that cause "labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers." Keller v. Miri Microsystems LLC, 781 F.3d 799, 806 (6th Cir. 2015); 29 U.S.C. § 202(a). The provisions of the statute are "remedial and humanitarian in purpose, " and "must not be interpreted or applied in a narrow, grudging manner." Herman v. Fabri-Centers of Am., Inc., 308 F.3d 580, 585 (6th Cir. 2002) (quoting Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597 (1944), superseded by statute on other grounds, Portal-to-Portal Act of 1947, 29 U.S.C. §§ 251-262).

         To effectuate Congress's remedial purpose, the FLSA authorizes collective actions "by any one or more employees for and on behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). To participate in FLSA collective actions, "all plaintiffs must signal in writing their affirmative consent to participate in the action." Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006). Only "similarly situated" persons may opt in to such actions. Id. Courts typically bifurcate certification of FLSA collective action cases. At the notice stage, conditional certification may be given along with judicial authorization to notify similarly situated employees of the action. Id. Once discovery has concluded, the district court-with more information on which to base its decision and thus under a more exacting standard-looks more closely at whether the members of the class are similarly situated. Id. at 547.

         In O'Brien v. Ed Donnelly Enterprises, Inc., we clarified the contours of the FLSA standard for certification. There, employees alleged that their employer violated the FLSA by requiring employees to work "off the clock, " doing so in several ways-requiring unreported hours before or after work or by electronically altering their timesheets. 575 F.3d 567, 572-73 (6th Cir. 2009). The district court initially certified the O'Brien case as a collective action. Id. at 573. At the second stage of certification, the court determined that the claims required "an extensive individualized analysis to determine whether a FLSA violation had occurred" and that "the alleged violations were not based on a broadly applied, common scheme." Id. at 583. Applying a certification standard akin to that for class actions pursuant to Federal Rule of Civil Procedure 23, the district court decertified the collective action on the basis that individualized issues predominated. Id. at 584.

         On appeal, we determined that the district court engaged in an overly restrictive application of the FLSA's "similarly situated" standard. It "implicitly and improperly applied a Rule 23-type analysis when it reasoned that the plaintiffs were not similarly situated because individualized questions predominated, " which "is a more stringent standard than is statutorily required." Id. at 584-85. We explained that "[w]hile Congress could have imported the more stringent criteria for class certification under Fed.R.Civ.P. 23, it has not done so in the FLSA, " and applying a Rule 23-type predominance standard "undermines the remedial purpose of the collective action device." Id. at 584-86. Based on our precedent, then, the FLSA's "similarly situated" standard is less demanding than Rule 23's standard.

         O'Brien applied the three non-exhaustive factors that many courts have found relevant to the FLSA's similarly situated analysis: (1) the "factual and employment settings of the individual[] plaintiffs"; (2) "the different defenses to which the plaintiffs may be subject on an individual basis"; and (3) "the degree of fairness and procedural impact of certifying the action as a collective action." Id. at 584 (quoting 7B Wright, Miller & Kane, Federal Practice and Procedure § 1807 at 487 n.65 (3d ed. 2005)); see also Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1261-65 (11th Cir. 2008) (applying factors); Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2001) (applying factors); Frye v. Baptist Mem'l Hosp., Inc., 495 F.App'x 669, 672 (6th Cir. 2012) (concluding that district court properly exercised its discretion in weighing the O'Brien factors and granting certification). Noting that "[s]howing a 'unified policy' of violations is not required, " we held that employees who "suffer from a single, FLSA-violating policy" or whose "claims [are] unified by common theories of defendants' statutory violations, even if the proofs of these theories are inevitably individualized and distinct, " are similarly situated. O'Brien, 575 F.3d at 584-85; see also 2 ABA Section of Labor & Emp't Law, The Fair Labor Standards Act 19-151, 19-156 (Ellen C. Kearns ed., 2d ed. 2010) (compiling cases supporting use of the three factors and noting that "many courts consider whether plaintiffs have established a common employer policy, practice, or plan allegedly in violation of the FLSA, " which may "assuage concerns about the plaintiffs' otherwise varied circumstances").

         Applying this standard, we found the O'Brien plaintiffs similarly situated. We determined that the district court erred because plaintiffs' claims were unified, as they "articulated two common means by which they were allegedly cheated: forcing employees to work off the clock and improperly editing time-sheets." O'Brien, 575 F.3d at 585. However, due to O'Brien's peculiar procedural posture (the only viable plaintiff remaining did not allege that she experienced the unlawful practices), remand for recertification was not appropriate. Id. at 586. In sum, O'Brien explained the FLSA standard for certification, distinguishing it from a Rule 23-type predominance standard, and adopted the three-factor test employed by several of our sister circuits. Id. at 585.

         Just as O'Brien clarifies the procedure and requirements for certification of a collective action, the Supreme Court's opinion in Anderson v. Mt. Clemens Pottery Co.-originally a Sixth Circuit case-explains the burden of proof at trial. Using a formula "applicable to all employees, " the district court there awarded piece-rate employees recovery of some unpaid overtime compensation under the FLSA. 328 U.S. 680, 685-86 (1946), superseded by statute on other grounds, Portal-to-Portal Act of 1947. We reversed on appeal, determining that the district court improperly awarded damages and holding that it was the employees' burden "to prove by a preponderance of the evidence that they did not receive the wages to which they were entitled . . . and to show by evidence rather than conjecture the extent of overtime worked, it being insufficient for them merely to offer an estimated average of overtime worked." Id. at 686.

         On certiorari, the Supreme Court held that we had imposed an improper standard of proof that "has the practical effect of impairing many of the benefits" of the FLSA. Id. It reminded us of the correct liability and damages standard, with a cautionary note: an employee bringing such a suit has the "burden of proving that he performed work for which he was not properly compensated. The remedial nature of this statute and the great public policy which it embodies . . . militate against making that burden an impossible hurdle for the employee." Id. at 686-87. We have since acknowledged that instruction. See Moran v. Al Basit LLC, 788 F.3d 201, 205 (6th Cir. 2015). The Supreme Court also explained how an employee can satisfy his burden to prove both uncompensated work and its amount: "where the employer's records are inaccurate or inadequate and the employee cannot offer convincing substitutes . . . an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference." Mt. Clemens, 328 U.S. at 687. The employee's burden of proof on damages can be relaxed, the Supreme Court explained, because employees rarely keep work records, which is the employer's duty under the Act. Id.; see O'Brien, 575 F.3d at 602; see also 29 U.S.C. § 211(c); 29 C.F.R. § 516.2(a)(7). Once the employees satisfy their relaxed burden for establishing the extent of uncompensated work, "[t]he burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence." Mt. Clemens, 328 U.S. at 687-88.

         We quoted and applied this standard in Herman v. Palo Group Foster Home, Inc., concluding that the employees had met their burden on liability because "credible evidence" had been presented that they had performed work for which they were improperly compensated. 183 F.3d 468, 473 (6th Cir. 1999). Also recognizing this shifting burden, we held that "Defendants did not keep the records required by the FLSA, so the district court properly shifted the burden to Defendants to show that they did not violate the Act." Id. The end result of this standard is that if an "employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate." Id. at 472 (quoting Mt. Clemens, 328 U.S. at 688).

         The core standards set out in the cases above are reinforced by the Supreme Court's recent decision in Tyson. There, employees of Tyson Foods, working in over 400 jobs across three departments in a pork processing plant, sued under the FLSA claiming that they did not receive overtime pay for time spent donning and doffing the protective gear specific to their job. 136 S.Ct. at 1041-42. The employees sought certification as a class action under Federal Rule of Civil Procedure 23 and as a collective action under 29 U.S.C. § 216. Id. at 1042. The district court certified the action over Tyson's objection that the employees' claims were too dissimilar for resolution on a classwide basis because the employees took varying amounts of time to don and doff varying kinds of gear. Id. at 1042-43. Because Tyson did not keep time records as required by the FLSA, the employees relied on representative evidence in the form of employee testimony, video recordings, and an expert study that estimated the average time spent donning and doffing equipment in different departments based on video observations. Id. at 1043. According to the employees' expert, donning and doffing time varied among workers, ranging from about 30 seconds to ten minutes in one department, and from two to nine minutes in another. Id. at 1055 (Thomas, J., dissenting). Subsequently, Tyson argued to the jury that this same variance made classwide recovery improper. Id. at 1044 (majority opinion). The jury found Tyson liable, but awarded significantly less in aggregate damages than the expert's estimated times would have supported. Id. The district court denied Tyson's post-trial motions, including its motion to decertify the class, and the Eighth Circuit affirmed.

         Before the Supreme Court, Tyson challenged the certification of the class and collective actions, raising arguments comparable to those made by FTS and UniTek here-that using a representative sample "manufactures predominance, " absolves employees of their burden to prove personal injury, and robs an employer of the right "to litigate its defenses to individual claims." Id. at 1046. Based on these objections, Tyson sought a ban on representative evidence. Id. In response, the Supreme Court examined whether the employees' class certification under Rule 23 was appropriate given that the employees' key evidence, compiled in their expert's average time estimates, assumed that the various employees spent the same average time donning and doffing. Id. at 1041, 1046. Finding that the requested ban "would make little sense, " the Court affirmed the class certification as proper, holding that the expert's study was admissible as representative evidence and that the jury's reliance on the study's assumption was permissible under Mt. Clemens. Id. at 1046-47; id. at 1046 ("In many cases, a representative sample is 'the only practicable means to collect and present relevant data' establishing a defendant's liability." (quoting Manual of Complex Litigation § 11.493, at 102 (4th ed. 2004))).

         Tyson does not compel a result different from the original opinion in this case. It supports that decision because it reaffirms Mt. Clemens, its burden-shifting framework, and the permissibility of "just and reasonable inference[s]" from plaintiffs' evidence in FLSA cases where employers do not keep required records. Id. (quoting Mt. Clemens, 328 U.S. at 687). Tyson, moreover, analyzed the issue of "generalized class-wide proof" through the predominance requirement for class certification under Rule 23, id. at 1045, which we have held "is a more stringent standard than is statutorily required" for collective actions under § 216, O'Brien, 575 F.3d at 585. The Supreme Court's ruling authorizing representative evidence under the standards of Rule 23 is therefore more than sufficient to cover FLSA collective actions under § 216- actions that effectuate the "remedial nature of [the FLSA] and the great public policy which it embodies." Tyson, 136 S.Ct. at 1047 (alteration in Tyson) (quoting Mt. Clemens, 328 U.S. at 687). Thus, the certification standards and burdens of proof for collective actions that we set out and applied in our original opinion are confirmed in Tyson. And, because Tyson did not address damages, our analysis on damages is also unaffected.

         FTS and UniTek contend that two pieces of dicta in Tyson control this case. First, they challenge the district court's instruction that non-testifying technicians would be "deemed to have shown the same thing" as the testifying technicians, arguing that the instruction usurped the jury's role of determining the representativeness of the evidence. FTS and UniTek rely on the Court's acknowledgement that the persuasiveness of admitted evidence is generally a matter for the jury, including the question of "whether the average time [the employees' expert] calculated is probative as to the time actually worked by each employee." Id. at 1049. The Supreme Court, however, made this reference to illustrate the role of the district court in granting class certification. See id. ("The District Court could have denied class certification on this ground only if it concluded that no reasonable juror could have believed that the employees spent roughly equal time donning and doffing."). This dictum concerned how district courts should assess the representativeness of an expert's statistical average for class certification purposes, not how a district court could exercise its discretion to instruct a jury or structure a verdict form. The court below properly instructed the jury that FLSA procedure allows representative employees to file a lawsuit on behalf of a collective group and that the testimony of some may be considered representative proof on behalf of the whole class. See supra pp. 5-6; infra pp. 23-24 (citing precedent from nine sister circuits permitting representative testimony to establish liability for non-testifying employees in FLSA cases). The verdict form here permitted the jury to determine whether FTS applied a single, company-wide time-shaving policy to all FTS Technicians, including non-testifying employees. See infra pp. 26-27. Tyson, whose holding related only to class certification, does not require reversal of a trial that included a jury instruction or form concerning the nature of representative evidence in FLSA collective actions.

         Second, FTS and UniTek turn to the Supreme Court's statement that representative evidence that is "statistically inadequate or based on implausible assumptions" could not be used to draw "just and reasonable" inferences about the number of uncompensated hours an employee worked. Id. at 1048-49 (quoting Mt. Clemens, 328 U.S. at 687, for the latter quotation). According to FTS and UniTek, the failure of FTS Technicians to present a statistical expert and study was a failure that should have ended the litigation or prohibited FTS Technicians' reliance on the testimony of 17 technicians. Tyson does not impose such a requirement. The Court's statement about statistical adequacy was made in the context of the admissibility of representative evidence. See id. at 1049 (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)). FTS and UniTek do not challenge the admissibility of the testimony of the 17 technicians, but rather the sufficiency of FTS Technicians' representative evidence. And, significantly, Tyson did not discuss expert statistical studies because they are the only way a plaintiff may prove an FLSA claim, but because those plaintiffs offered such a study-along with employee testimony and video recordings. For our purposes when assessing the sufficiency of the evidence, "the only issue we must squarely decide is whether there was legally sufficient evidence-representative, direct, circumstantial, in-person, by deposition, or otherwise-to produce a reliable and just verdict." Morgan, 551 F.3d at 1280. As will be shown below, FTS Technicians presented more than sufficient evidence from representative technicians along with "good old-fashioned direct evidence, " including six managers and supervisors and documentary proof containing timesheets and payroll records. See infra Part C.1. The 17 testifying technicians, moreover, were drawn from the representative sample of 50 technicians agreed upon by both parties. FTS and UniTek included all 50 technicians from this sample on their witness list and had, but chose not to exercise, the right to call any of them to challenge the representativeness of the testifying technicians. FTS and UniTek seek what Tyson rejected, "broad and categorical rules governing the use of representative and statistical evidence in class actions." Id. at 1049. Tyson did not create a rule limiting representative evidence beyond the well-established standards of admissibility.

         In summary, Tyson approved the use of representative evidence in a FLSA case similar to this one and expressly reaffirmed the principles set out in Mt. Clemens. It reinforced the remedial nature and underlying public policy of the FLSA and explicitly declined to set broad rules limiting the types of evidence permissible in FLSA collective actions. We conclude that Tyson does not change our analysis in this case.

         B.Certification as a ...


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