Statistical Evidence in Wage and Hour Class Actions: Impact on Certification and Trial
Disputing or Leveraging Representative Sampling to Prove Classwide Liability and Damages
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Employment and Workers Comp
- event Date
Thursday, June 15, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE course will arm employment counsel with the latest strategic approaches for disputing or leveraging the use of statistical evidence to establish classwide liability in wage and hour actions. The panel will discuss recent decisions discussing the use of statistical evidence, review statistical sampling techniques relevant to wage and hour cases, and examine best practices for employment counsel going forward.
Ms. Forsey handles all facets of the litigation and trial process in labor and employment disputes. She has significant experience in defending wage and hour class actions, including claims for overtime pay, meal and rest period violations, misclassification, prevailing wages and claims concerning premium pay issues. Ms. Forsey has successfully defended labor and employment disputes under both state and federal law, including harassment, misclassification, discrimination, whistleblowing, and retaliation. In addition to civil litigation matters, Ms. Forsey regularly represents employers in matters before governmental agencies and assists employers in handling regulatory audits. She also provides strategic advice to employers on a full spectrum of employment compliance issues; including local ordinances, wage and hour compliance, employee terminations, responding to employee leave requests, trade secret theft, and employee privacy.
Mr. Petersen, Ph.D. has served as a statistical and damages expert for plaintiffs and defendants in over 70 class action wage and hour cases. Many of these cases involved using a data sample to show classwide liability and damages. He has authored peer-reviewed journal articles on conducting surveys in class action wage and hour cases and statistical inference from sample data.
Mr. Barnes is one of the first attorneys to litigate wage and hour cases in California beginning in 1997 and has tried three class action wage and hour cases, one of which resulted in a $32.8 million Statement of Decision which led to a $60 million lump sum settlement. Mr. Barnes is at the forefront of litigating what is required for a viable trial plan in wage and hour class cases. At the trial court level, he has settled numerous wage and hour class action cases for several hundred million dollars. Mr. Barnes has and continues to be involved in numerous favorable appellate court decisions over the last 20 years which have been very important in the creation and preservation of wage and hour class action law.
The use of statistical evidence has long been part of complex wage and hour litigation and has evolved since the U.S. Supreme Court ruled against the employer in Tyson Foods Inc. v. Bouaphakeo, holding that statistical sampling was a permissible form of evidence that a jury may consider in determining hours employees worked and to establish classwide liability in an FLSA action.
In some cases, plaintiffs seek to use the testimony of a representative sample of employees to establish a prima facie case under the FLSA or state wage and hour statutes. As such, defense counsel may challenge the propriety of using statistical sampling and the soundness of any statistical methodology.
Plaintiffs may also attempt to use statistical sampling when the universe of data is not available, or no data is available, to establish liability and class-wide damages. When limited data is available (a sample), plaintiffs may apply inferential statistical analysis to prove/disprove classwide assertions provided the sample meets the criteria of being representative of the population. If no data is available, plaintiffs can utilize a survey of the class members to establish class-wide liability and damages.
Effective defense techniques include contesting whether the use of sampling would be appropriate under the framework established in Tyson Foods, challenging whether the sample used is representative, questioning surveys and their methodology, and arguing that a more individualized determination of liability and damages is required by the Rules Enabling Act or due process.
Listen as our distinguished panel reviews strategic approaches to disputing or leveraging statistical evidence in wage and hour class actions in light of Tyson Foods and its progeny. Our panel will discuss the uses of representative evidence and statistical sampling techniques relevant to wage and hour cases and offer best practices for plaintiff and defense counsel.
- Representative evidence and liability
- Plaintiff strategies for leveraging statistical evidence
- Defense strategies for attacking statistical evidence
The panel will review these and other key issues:
- How to meet the Daubert standard to have the statistical analysis admitted under Rule 702
- What types of statistics can be introduced during certification and trial, and what are the proper ways of utilization?
- What are the most effective challenges to the use of statistical sampling?
- Under what circumstances should counsel advocate for alternative ways to prove damages as opposed to extrapolating from samples?
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