The issue is before the U.S. Supreme Court in Tyson Foods, Inc. v. Bouaphakeo. The plaintiffs in the case allege that they should be paid for their time spent donning and doffing required clothing; to calculate the overtime wages they seek, they created an "average employee" and asserted that each class member is due the wages that this "average employee" would have earned. "The problem is that hundreds of class members had no injury at all," Goldberg writes. "It was clear under the plaintiffs’ own statistical sampling model that these employees were fully paid, even accounting for the time to put on and take off gear. Yet, the district court certified the case as a class action with these uninjured people. At trial, the jury found that the modeling majorly overstated the damages and about half of the class had no or only a de minimis injury. Yet, the court allowed all class members, including the uninjured, to get the same pro rata share of the award."
Goldberg challenges this reasoning in his article (cross-posted at the Progressive Policy Institute) and in an amicus brief submitted on the subject. "Access to justice is the hallmark of our civil justice system, but justice is not served when people who are not injured get paid as if they were," he argues. "The answer is simple: require lawyers to define classes that include only injured people. If this is too hard, that is a sign that the claims are not appropriate for class treatment and should be pursued individually."