Attack I: Inadmissible Hearsay - a detailed look

Is the bar for wage and hour survey evidence too high?

As mentioned in the last posted the defendant's in Marlo v. UPS attacked the plaintiff's wage and hour survey on several levels. The following discusses the details of the attack.

1. A representative sample was not selected.

First, no precautions were
taken to ensure that only qualified respondents were included in the Telephone
Survey....the Telephone Survey did not ask any questions to ensure that
respondents were qualified to participate in the survey, such as whether they were
currently employed at UPS in one ofthe FTS job positions, or if they ever held one
of the relevant FTS job positions at UPS.


Second, there is no evidence that the respondents who participated in
the Telephone Survey are representative of all class members. Of the 614
"qualified respondents" provided by Plaintiffs counsel, only 160 interviews were
completed. The plaintiff's expert does not provide information about relevant characteristics of the 160 respondents, such as the region or district where they worked, whether they worked as a full-time on-road, hub, or preload supervisor, or the length oftheir employment. fd. Nor does it compare the characteristics of the respondents to the population the Telephone Survey was
intended to represent.

The plaintiff's expert confirmed at deposition that she did not know whether
the sampling frame was representative of the universe, whether the sample was
random from any other larger universe of people who were being surveyed, or
whether the sample was stratified as to any larger list, and that she did nothing at all
to evaluate the representative nature of the sample.