Necessity is the mother of invention, FLSA style.
FLSA class action litigators, plaintiff and defense, are resorting are trying out new attacks and defenses. Nowadays, and seemingly mote in misclassification cases, there is numerical data that exists that might shade court towards ruling in a particular manner, i.e. to keep the range of the exemption narrow, or broad, as the case may be. This wealth of data includes phone records, perhaps additional call records, computer information, expense records or personnel records. The theory is that analysis of this data can generate strategic insight into the validity (or lack thereof) of the claims brought.
For example, on the issue of conditional certification of an appropriate class, the putative class members might be holding various positions, seniority status, or be impacted by different personnel or corporate policies. A statistical scrutiny may reveal differences among these class members, which would be relevant to an employer (for example) demonstrating that there is too much "individuality" for the class to survive.
By taking and then reducing sometimes abstruse/complex data to "numbers," the analyst can evaluate and then categorize possible class members, drawing conclusions and hypotheses on the statistical significance of differences between the groups. With the quantity of data "out there" for scrutiny, the use of ostensibly "simple" numbers can be a potent weapon for discerning variations, if any, in the daily activities of workers, with an eye towards relegating their status to in, or out, of the hoped-for certification.
Tellingly, statistical analysis can also assist the employer defendant in rebutting the (all too familiar) contention (in an administrative exemption case) that the job is an easy, simple one requiring no discretion or independent judgment. For example, some mortgage brokers may struggle mightily, make dozens and dozens of calls and yet not be successful, while others make dramatically fewer calls and are very successful. This could let a defendant argue that the content of the call, i.e. the discretion and judgment utilized in making the call, shows an evaluative process was being used by the employee, the hallmark of discretion (and exemption).
Necessity can work both ways.
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