Wage and Hour Litigation: Effective Use of Expert Witnesses Selecting an Appropriate Expert and Leveraging Expert Testimony During Class Certification, Motion Hearings and Trial Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. THURSDAY, MAY 24, 2012 Presenting a live 90-minute webinar with interactive Q&A Neil A. Capobianco, Partner, SNR Denton, New York Michael A. Alaimo, Principal, Miller Canfield, Detroit
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Wage and Hour Litigation:
Effective Use of Expert Witnesses Selecting an Appropriate Expert and Leveraging Expert Testimony
During Class Certification, Motion Hearings and Trial
• Timekeeping data - Time in & out (shifts and breaks) - Employee failure to clock in all the time - Exempt employees - Management edits • Payroll data - Credited hours and pay (by pay type) - Accuracy - Often bi-weekly • Work history data - Jobs held and when
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Wage and Hour Litigation: Effective Use of Expert Witnesses
Morales v. Greater Omaha Packing Co., Inc., No. 08 CV 88 (D. Neb. Feb. 15,
2011)
FLSA and state law action alleging donning, doffing, and cleaning are
compensable.
Plaintiffs offer William J. Cutler, Jr. as expert, who conducted a “time study.”
Company moves to strike Cutler’s report, including his time study, which
measured the amount of time, pre- and post-shift and during the daily meal period
where plaintiffs were not paid.
Company also objected to Cutler offering opinions about whether the Company
complied with the FLSA and its regulations.
Company claimed that Cutler lacks qualifications to testify, his study methodology
is not scientifically valid, his opinions are unreliable in terms of sample sizes,
selection methods, and data gathering.
Cutler’s opinions are inadmissible because they usurp the fact-finder’s function.
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Wage and Hour Litigation: Effective Use of Expert Witnesses
Morales v. Greater Omaha Packing Co., Inc., No. 08 CV 88 (D. Neb. Feb. 15,
2011)
Cutler = U.S. DOL Wage & Hour Compliance Specialist for 24 years.
Witness may qualify to render an expert opinion by knowledge, skill, experience,
training, or education.
“Mr. Cutler is clearly qualified to testify.”
Company contends subjective bias in samples chosen not statistically random,
made group assumptions instead of collecting individual data, and used small
samples.
“Mr. Cutler testified that the use of this time study technique was the same as he
used in the Department of Labor.”
Court notes Cutler would have had more objective material to work with if the
records included the donning and doffing time.
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Wage and Hour Litigation: Effective Use of Expert Witnesses
Morales v. Greater Omaha Packing Co., Inc., No. 08 CV 88 (D. Neb. Feb. 15,
2011)
Cutler, his assistant, and Plaintiffs’ attorneys were only given 2 days to make their
observations and were not permitted to split up.
Cutler can be cross-examined at trial.
However, no legal conclusions.
“As a general matter an expert cannot offer conclusions of law. The expert must
testify as to facts but should not focus on issues of law.”
Cutler may “testify as to the regulations he bases his opinions on so long as this
testimony does not cross over into conclusions regarding whether defendant acted
within the law or not.”
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Wage and Hour Litigation: Effective Use of Expert Witnesses
Marting v. Crawford & Co., 9 WH Cases2d 554 (N.D. Ill. Jan. 8, 2004)
FLSA/Cal. class action claiming insurance adjusters are non-exempt.
Brian H. Kleiner, Ph.D, a tenured professor in the College of Business and
Economics at California State University.
Published hundreds of articles in the field of human resource management.
Specialties include “job analysis.”
Articles include Determining Exempt Or Non-Exempt Status Under California Law
for Managers and California Minimum Wage and Overtime.
Kleiner reviewed Plaintiff’s tasks on daily time cards, reviewed Company’s training
and operations systems and analyzed deposition transcript of Company’s
corporate designee.
Kleiner concluded that Plaintiff “did not customarily or regularly exercise discretion
and independent judgment.”
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Wage and Hour Litigation: Effective Use of Expert Witnesses
Marting v. Crawford & Co., 9 WH Cases2d 554 (N.D. Ill. Jan. 8, 2004)
Court concludes Kleiner’s report lacks reliability and should be excluded.
“not verified by the scientific method through scientific facts or experiments.”
Kleiner published no articles regarding his methodology of analyzing jobs to
determine if they are exempt or non-exempt.
Kleiner admits he does not know if his methods are widely accepted.
Implausible that Kleiner is an expert in FLSA job classifications “where he admits
that he has not even read the law itself.”
Kleiner admitted that he did not know the rates of error in his analysis.
Kleiner’s analysis was not based on extensive empirical studies and statistics.
Kleiner’s analysis goes to the ultimate legal issue of the case.
While an expert’s report won’t be rejected merely because it encompasses an
ultimate issue for the factfinder, report must offer more than “bottom line.”
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Wage and Hour Litigation: Effective Use of Expert Witnesses
In re Wal-Mart Stores Inc., 505 F. Supp. 2d 609 (N.D. Cal. 2008)
Rule 23 class action alleging final pay was short or late under California law.
Damages expert Martin Shapiro analyzed 3 electronic databases:
– “Associate” database tracks employee time, attendance, and payment records.
– “Payroll” database contains details of employee’s payroll, including hours and
dollars.
– “PeopleSoft” database includes termination dates and termination reasons.
Shapiro claimed he could determine from these databases:
– Amount of PTO accrued but unpaid at time of termination (subclass 1).
– Amount of other wages due but unpaid at termination (subclass 2).
– Whether and when final pay was received late by any particular employee
(subclass 3).
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Wage and Hour Litigation: Effective Use of Expert Witnesses
In re Wal-Mart Stores Inc., 505 F. Supp. 2d 609 (N.D. Cal. 2008)
Wal-Mart attacked Plaintiffs’ class certification on 2 main grounds:
– Dr. Shapiro’s methodology and calculations are so rife with errors as to make
any reliance on them insufficient as a matter of law.
– Databases analyzed don’t contain requisite information necessary to determine
whether and when Wal-Mart’s statutory duties to tender final pay were
triggered, specifically, information related to the exact date an employee was
terminated and whether and when the employee made himself available to pick
up his final pay in-store.
“The precision with which [Wal-Mart’s expert] was able to identify and correct
errors in Dr. Shapiro’s calculations only illustrates the degree to which the needed
information can be extracted from the databases with the requisite precision.”
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Wage and Hour Litigation: Effective Use of Expert Witnesses
In re Wal-Mart Stores Inc., 505 F. Supp. 2d 609 (N.D. Cal. 2008)
After receiving the declaration from Wal-Mart’s expert, Dr. Shapiro re-performed
his calculations – taking into consideration the Cash Office Database, which
captures cash paid to employees – and concluded that his initial calculations were
only affected by 0.02 percent.
“Thus, while Wal-Mart makes heavy weather of the errors in Dr. Shapiro’s
calculations, the errors themselves are either negligible or easily identifiable and
correctable.”
At the class certification stage, “robust gatekeeping of expert evidence is not
required; rather, the court must query only whether expert evidence is ‘useful in
evaluating whether class certification requirements have been met.’”
“Whether or not his calculations are ultimately correct is a matter more
appropriately raised at the merits stage, and need not be reached at the class
certification stage.”
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Wage and Hour Litigation: Effective Use of Expert Witnesses
REVISIONS TO RULE 26 EFFECTIVE DECEMBER 1, 2010
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Wage and Hour Litigation: Effective Use of Expert Witnesses