Wage and hour survey discussion Part I

From the previous post (9/2/2008)According to the defense's Daubert motion, the wage and hour survey in the Big Lots case suffered from a number of flaws.

As mentioned, the court disagreed and denied the defense's motion.

List of criticisms:

* The survey responses conflicted with opt-in actual deposition testimony.

* Survey had “non-response bias and coverage error.”

* Another flaw with the survey is that it was not pretested, with the
exception of internally and with Plaintiffs’ counsel

*Recency bias, or the tendency to overweight recent experience in our perception of general experience.

* “Coverage error occurs when members of the survey population do not have an equal probability of being chosen to be part ofthe sample studied.” (Survey did not include non-opt-ins)

* Numerous survey responses that indicated confusion or dissatisfaction with survey questions. Of the 553 responses he reviewed, over 55 percent (306)contained missing or incomplete answers...

*Plaintiff expert did not provide a follow-up to questions

* Survey used the FLSA test qualifications. Focused on the long test (for exemption classification) when the short test questions were arguably the correct ones.

* Questions failed to seeks information regarding the respondent’s employment
history with BigLots. It fails to draw any distinction between time employed at Big Lots
that is at issue in thisaction and time that falls outside the statute of limitations.

*Use of the word “regularly” in the survey question resulted in a great
deal of confusion,destroying any confidence that the survey responses on the relevant
issues (hiring and firing) arereliable in terms of what is required by the regulations.

*“Regularly” is not defined in the survey instrument, leaving the respondents to formulate their own interpretations

* Term refers to average work week but does not define them.

* Some questions do not add correctly. Either their totals failed
to equal 100 percent or, as in the case of numerous respondents they listed very high percentages (between 75% to 100% foreach of the activities) evidencing total confusion about the question.

*Wrong defintion of work week. The employer defined a full time work week as 32 hours and not 40 as in the survey

* Disagreed with damage method.

Plaintiff expert calculated that, based upon the survey responses, the respondents worked anaverage of 59.3 hours per week. He further claimed, based upon a 95 percent confidenceinterval, that this means that 95 percent of all opt-ins worked 58.5 to 60 hours a week. He then concludes that all of the opt-ins should be awarded damages simplyby determining from payroll records how many weeks each Assistant Store Manager had worked, by applying theappropriate overtime factor to the base hourly rate and then multiplying the resulting overtimerate by the number of hours worked in excess of forty per week.

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