Wage-and-hour damages expert
Expert class library · Employment · Plaintiff side
Estimates unpaid wages and overtime for a class or collective of workers from payroll and timekeeping data, employee surveys, and observational time studies. Where the employer's records are incomplete, this representative evidence is often the only way to prove hours worked, so courts examine whether the sample and survey design can reliably stand in for every class member.
What this expert is retained to answer
- How much uncompensated time did workers spend on activities such as donning and doffing, travel, or off-the-clock tasks?
- Is the observed or surveyed sample representative of the whole class across locations, roles, and time periods?
- Can average times from a study be applied to each class member to compute individual and aggregate damages?
- How do payroll and timekeeping records compare with the estimated hours actually worked?
- Are survey responses affected by non-response, recall, or self-interest bias?
Methods
- Representative sampling
- Time and motion study
- Payroll and timekeeping data analysis
- Class-wide damages extrapolation
How the testimony is attacked
- Survey design that cannot be fixed. Employers argue that worker surveys suffer from recall, self-interest, and non-response bias. In Senne v. Kansas City Royals the district court excluded the plaintiffs' pilot survey and the damages opinions relying on it, finding some of its shortcomings could not be remedied.
- Sample not representative of the class. Defendants attack samples drawn only from opt-in plaintiffs or a few facilities. The Senne district court found the opt-in-only coverage of the pilot survey did not alone warrant exclusion, because the main survey would add non-opt-in players.
- Averages that mask individual variation. Employers argue that average times cannot show what each worker actually did. In Tyson Foods v. Bouaphakeo the Supreme Court held that a representative time study can prove class-wide hours when it could sustain a reasonable jury finding for each employee in an individual action, and its persuasiveness is for the jury.
- Failure to make a timely Daubert challenge. Defendants who do not challenge the study's methodology under Daubert lose the argument that it was inadmissible. The Tyson Court found no basis to call admission of the time study error because the employer never raised a Daubert challenge, and the Ninth Circuit in Senne relied on the unchallenged admissibility ruling for the main survey.
What the public record shows
A deliberately narrow CourtListener search, (overtime OR "unpaid wages") AND (FLSA OR "wage and hour") AND (sampling OR "time study" OR "Tyson Foods") AND expert AND (Daubert OR "Rule 702"), returned 17 opinions filed since 2015, as of October 2, 2026; broader searches return more. Three that show how courts handle this class of testimony:
| Outcome | Case | Court | Why |
|---|---|---|---|
| Excluded | Senne v. Kansas City Royals Baseball Corp.315 F.R.D. 523 | N.D. Cal. 2016 | The court excluded the plaintiffs' pilot survey of hours worked, and the damages opinions built on it, because the survey did not satisfy Rule 702 and some of its shortcomings could not be remedied. |
| Admitted | Senne v. Kansas City Royals Baseball Corp.934 F.3d 918 | 9th Cir. 2019 | The Ninth Circuit upheld class certification resting on the plaintiffs' main survey, which the district court had admitted under Daubert because the defendants' criticisms went to weight, and held no further rigorous analysis of the survey was required. |
| Admitted | Tyson Foods, Inc. v. Bouaphakeo577 U.S. 442 | U.S. 2016 | The Supreme Court upheld use of the employees' representative time study to prove hours worked, holding that absent a Daubert challenge there was no basis to find its admission erroneous and its persuasiveness was for the jury. |
Each case links to the free opinion text on CourtListener.
Under amended Rule 702
Since December 1, 2023, Rule 702 says expressly that the party offering an expert must show the court it is more likely than not that the testimony meets each requirement: that it rests on sufficient facts or data, uses reliable methods, and reflects a reliable application of those methods to the case. Questions about the basis of an opinion are no longer automatically matters of weight for the jury. For how the circuits have applied the amendment, see the Rule 702 tracker, which follows each court of appeals; for what that means for preparing or attacking this class of expert, see the guide on amended Rule 702.
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Last reviewed October 2, 2026. How this page is built: rulings are found by searching court opinions on CourtListener, and each one is read in the opinion before it is summarised here; outcomes are labelled by what the court did with the expert's testimony. No individual expert is named. This page summarises public decisions for orientation and is not legal advice; read the opinion before relying on any ruling.