Sirko v IBM: The impact of unreliable surveys on wage and hour class certification
Statistical experts are involved at a number of stages in wage and hour cases. A recent ruling in a case involving IBM highlights the important role of surveys in the class certification stage, and the consequences of unreliable surveys constructed by non-experts.
In Sirko v. IBM, the plaintiffs allege they were misclassified and denied overtime while employed by IBM to service Kaiser Permanente computer systems. The plaintiff’s counsel designed and administered a survey exploring work duties.
The California federal district court denied the plaintiff’s request to establish class certification (Rule 23) based on survey evidence the court deemed unreliable. The survey was designed and administered by the plaintiffs’ counsel. Furthermore, the court examined declarations and found that despite having the same job code, putative class members performed varied duties.
The court pointed out the following survey flaws:
- Those who created and administered the survey, the plaintiff’s counsel, are not experts in statistics or survey methodology.
- The survey asked questions that required explanations or context, but only offered ‘yes’ and ‘no’ options.
- The survey was biased because a cover letter identified the survey as collecting information to assist in the recovery of overtime wages for misclassified employees.
Surveys are widely used in class action lawsuits, but should be designed and administered by experts to ensure reliability and admissibility of the data. Surveys can be time consuming and costly, so it’s easy to understand why non-experts would attempt to construct them. But the potential consequences seem too great to take the risk.
Relevant Resources
Sirko v IBM – Order Re Plaintiffs’ motion for class certification & defendant’s motion to strike
Seyfarth Shaw’s article on the survey’s impact on IBM case
EmployStats’ guide to using surveys and declarations in wage and hour cases