Shook, Hardy & Bacon Partner and National Employment Litigation and Policy Practice Chair Bill Martucci and Associate Ashley Harrison discuss how employers can effectively use statistics in wage and hour class action litigation in December’s Metropolitan Corporate Counsel.
Martucci and Harrison, who are both attorneys in Shook’s National Employment Litigation and Policy Practice, point out that as wage and hour litigation increases, “employers need to be prepared to fight unreliable statistical models that often lead to erroneously large damage awards.”
The authors also analyze an employer’s offensive tactics in using statistics in wage and hour litigation. "Using statistics to show variance with respect to these employee-specific job characteristics will also support an argument that a class should not be certified," they write:
Wage and hour litigation is certainly increasing. Meanwhile, class actions are also increasing, and therefore the use of statistics by plaintiffs to establish the appropriateness of a class model for both liability and damages is increasing. Employers need to understand how they can combat unreliable statistical models that may lead to erroneously large damages awards. It is equally important for employers also to recognize how the use of statistics effectively can prevent class litigation entirely. Keeping in mind the courts’ lessons about combating plaintiffs’ statistical models and using reliable statistics affirmatively will go far in evading class liability and damages in wage and hour litigation.