Statistical evidence in wage and hour cases after Brinker

Will statistical and survey evidence become less important after Brinker?

(from Akin Gump newsletter)

The California Court of Appeal for the Fourth Appellate District on July 22, 2008, in Brinker Restaurant Corp. v. Superior Court of San Diego County, issued a unanimous, published opinion that defines the elements of meal period, rest period and off-the-clock claims under California law. The court concluded that an employer must only provide meal and rest breaks to employees, not ensure that employees take them, as lawyers for plaintiffs have argued in many cases. The court held that why an employee did not take a particular break was an individual question that could not be resolved on a class basis. The court thus reversed class certification.

In terms of statistical evidence...the Court of Appeal rejected an argument that plaintiffs raised with respect to all of their claims: that “expert statistical and survey evidence” rendered their claims amenable to class treatment. The Court of Appeal explained that such evidence, while sometimes useful in the class certification context, in this case could not show why meal and rest breaks were not taken, whythey were interrupted or why employees worked off the clock. Only individual inquiries could resolve those questions, making class certification of plaintiffs’ claims inappropriate. 

Quality of school matters

Economics of Education Review
Volume 27, Issue 5, October 2008, Pages 588-602
Mark C. Long
College quality and early adult outcomes

Abstract: This paper estimates the effects of various college qualities on several early adult outcomes, using panel data from the National Education Longitudinal Study. I find that college quality does have positive significant effects on most outcomes studied using OLS. While there is some evidence of positive selection bias in the OLS results, the alternative methods rarely produce findings that are significantly different from the OLS estimates. Furthermore, alternative methods have their own limitations, which are discussed. Across methods of estimation, there is solid evidence of positive effects of college quality on college graduation and household income, and weaker evidence of effects on hourly wages.

The author compares results from:
...ordinary least squares with three alternative methods of estimation, including instrumental variables, and the methods used by Dale and Krueger [(2002). Estimating the payoff to attending a more selective college: An application of selection on observables and unobservables. Quarterly Journal of Economics, 117(4), 1491–1528.] and Black and Smith [(2004). How robust is the evidence on the effects of college quality? Evidence from matching. Journal of Econometrics, 121, 99–124.]. I

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.

Sponsered Link: Looking for a survey and damages expert in a wage and hour case? Go to http://www.employstats.com/

Wage and hour survey is admitted in FLSA case

John Johnson and Robert Burden v. Big Lots Stores, Inc., United States
District Court, Eastern District of Louisiana

In this case, the plaintiff's allege that the assistant store managers
are missclassifed as exempt from OT. According the plaintiff's report they
assistant managers worked on average 58 hours a week but were paid for
only 40 hours.

Plaintif's hired an ecoonomist to perform a survey of the opt-in members
of the class. The plaintiff's damage analysis was based on the survey.

Summary:

In a nutshell the defense argues that the plaintiff's survey is flawed. Argue to the brief, the flaws are as follow. First, the respondents are interested in the outcome of the litigation for
which the survey was conducted, and were told that the survey was to be used to help with their case, rendering the results unreliable. Second, additional methodological defects infected the survey with bias, rendering the analysis based upon it unreliable. Finally, the plaintiff's expert asked the wrong questions, resulting in misleading and unreliable answers.

The court disagreed and denied the defense's Daubert motion. In the coming post, we will discuss this case in more detail.

Sponsered Link: Looking for a survey and damages expert in a wage and hour case? Go to www.employstats.com