Is the bar too high for survey evidence in wage and hour cases? Part I
In November 2004, Plaintiff Michael Marlo's counsel of record, John
Furutani, retained a "data collection execution and management" to conduct a telephone survey ("Telephone Survey") of current and former UPS employees.
The survey asked questions related to procedures that the UPS employees followed. The survey also asked about the authority that the UPS employees had to fire, change schedules, etc. of other UPS employees.
Plaintiff intends to offer the expert testimony of the president of the survey firm regarding the fact, content, results, or purported scientific validity of the Telephone Survey.
Application of knowledge and training!manager's desires
1) Do you apply your knowledge ofUPS' prescribed procedures when
determining which procedure to follow in a given situation?
2) Are the decisions you make on a daily basis as a UPS full-time supervisor
based on UPS' rules, procedures or methods that you have been trained on?
3) Are the decisions which you routinely make as a UPS full-time supervisor
based on the experience you have gained working for UPS?
4) Have you been traioed in UPS' methods and procedures?
5) Are the decisions which you routinely make as a UPS full-time supervisor
based on the training you have received while working for UPS?
6) Are the decisions of consequence you make in the operation dictated by the
training you have received on the proper procedures and methods?
Training on the methods
7) Do you have the authority to modify training methods if you feel you have a
better way of doing something?
8) Do you train employees on UPS' methods?
9) Do you ever disregard the methods while training?
10) Do you train outside of the prescribed methods?
11) Do you train outside of the prescribed procedures?
12) Do you have the authority to train an employee in your own methods if you
feel they are better than UPS'?
Changing and adherence to goals set by UPS
13) Do you have the authority to unilaterally change the goals set by UPS?
14) Do you have the authority to unilaterally change the goals given to you by
Industrial Engineering (IE)?
15) As a full-time supervisor, do you have the authority to disregard "Packages
Per Hour" (PPH) goals?
16) As a full-time supervisor, do you have the authority to disregard "Stops-peron-
mad-hour" (SPORR) goals?
Assigning staff/vacation/salary decisions
17) If staffing is low going into the following week, do you have the authority to
unilaterally cancel the planned vacations of your employees for the following
18) If one ofyour drivers has an accident, do you have the authority to decide that
the driver does not need a ride along the next day?
19) If a driver has a minor accident, do you have the authority to instruct the
driver to ignore it and not report it?
20) Do you determine the hourly wages for the hourly employees assigned to you?
21) Do you have the authority to supervise those employees who do not work
directly under you?
22) Does the Collective Bargaining Agreement dictate how many hourly
employees can be off on vacation at any given time?
23) Does the Collective Bargaining Agreement dictate which hourly employees
get to pick vacation first?
24) Are the decisions which you make as a UPS full-time supervisor limited in
any way by the Collective Bargaining Agreement for hourly employees?
25) Do you have the authority to ignore the Collective Bargaining Agreement?
26) As a full-time hub, preload or on-road supervisor, do you have the authority to
hire more employees to your rosters without Industrial Engineering (IE) or
Human Resource (RR) approval? '.
27) As a full-time hub, preload or on-road supervisor, do you have the authority to
hire a new employee on behalf ofUPS?
28) If you see an employee violating a method, such as walking on a moving belt,
do you have the authority to iguore the behavior and allow it to continue?
29) Do other supervisors have the authority to discipline your hourly employees?
30) Do you have the authority, as a full time supervisor, to discipline the hourly
employees of another supervisor?
Working as directed
31) Are you directed by your manager or division manager to do traininglon-jobsupervision?
32) Are you required to follow UPS' methods?
33) Are you required to make sure that UPS' hourly employees are following
34) Are you required to follow UPS' methods and procedures in achieving the
goals dictated by corporate?
35) Are you required to work as directed by your manager or division manager?
36) Do you have the authority to disregard any safety method prescribed by UPS?
37) Are you required to do daily audits?
38) Do you use a checklist to perform these daily audits?
39) When you are doing a checklist audit, do you have the authority to disregard
any methods or procedures?
40) Are you required to document audits on UPS checklist or audit forms?
41) Does your manager have the final say for operational issues?
42) Does your division manager have the ultimate decision-making authority for
Labels: FLSA, misclassification, statistical evidence, surveys, wage and hour