Literature Review: Use of statistical evidence in complex wage litigation
‘
Use of statistical evidence in complex wage litigation‘, an article written by Adam T. Klein and Tarik F. Ajami of Outten & Golden LLP, explores the role of statistical analysis as a core class of evidence in complex wage employment litigation. (Ajami is now Deputy General Counsel at AIG).
They argue that statistical expert evidence is better suited to class action wage and hour lawsuits than it is to Title VII claims and other employment matters. Courts rely (sometimes primarily) on the testimony and reports of statistical experts, especially during a class certification phase. With the prevalence of the use of statistical evidence in employment litigation, courts have become well versed in statistical methodology, and often insist on reliable reports using sophisticated techniques such as regression analysis.
The article provides a historical background for the use of statistics in wage suits, reaching back to Anderson v. Mt. Clemens Pottery Co. in 1946, in which the Court ruled that in the absence of adequate and accurate employment records, that one may sue for lost wages based on sufficient evidence of violations. A plaintiff class may present evidence of a representative sample rather than testimony from each employee. It is up to the Court to determine if the sample of employees is adequate and reliable.
An FLSA overtime lawsuit in 1989, Dole v. Haulaway, Inc., set the stage for the future importance of statistical evidence by identifying the need for expert testimony and methodology to make the data accessible and understandable to the Court. The “tortured course” of this trial due to the lack of expert guidance and analysis provided an overwhelming endorsement of using statistical sampling in future wage and hour litigation.
Surveys and sampling techniques have been deemed admissible in a variety of cases in which discovery would be overwhelmingly time consuming and costly. Despite the prevalence of this type of evidence in lawsuits, Klein and Ajami point out how surprising it is that there are “very few judicial opinions discussing the use of statistical methods in proving liability or damages in wage-and-hour cases under the FLSA or state wage-and-hour laws.
Statistical sampling is ideal for large scale wage and hour lawsuits in which there is a tremendous amount of data because it allows for “highly accurate aggregate determinations of hours worked.” One downside of this trend, however, is that each plaintiff recovers an average amount of damages rather than an accurate amount determined by his or her specific data.
Klein and Ajami argue that the ‘pros’ of statistical sampling methods outweigh any concerns about inaccurate damages or ‘rough justice’. Although individual plaintiffs are not provided precise economic compensation, sampling methods allow data in complex, class-action wage litigation to be efficiently and effectively litigated.
Relevant reading
