United States: Give The Data A Chance: Identifying And Interpreting Behavioral Patterns In Wage And Hour Disputes

Last Updated: May 15 2014
Article by Dr. Alex Grecu

Employers often worry that by increasing the amount of data they track about employees' activities, they also increase the risk that these same data may be used against them in wage and hour litigation. There is a statistical basis for this concern. Large data sets increase the chances that relationships measured within these datasets will register as statistically significant, even when those relationships are spurious. That is to say, should an employer decide to collect data metrics regarding its employees' activities with an increased frequency/accuracy or expand the scope and detail of the gathered data to include details previously not collected, the employer increases the chances that, in the event of a dispute, the experts analyzing the data will find a significant statistical relationship where none existed with the more limited data available before.1 What employers may not realize, though, is that access to this more detailed data may be very beneficial in demonstrating that individualized circumstances and behaviors prevent class certification, in defending against meritless allegations, in winnowing down classes that are overly broad, and, where necessary, in generating a more accurate estimate of any damages. In fact, these benefits can be reaped efficiently, since an analysis made possible by the availability of extended data could be used during all stages of a wage and hours dispute, from class certification and addressing the liability through estimation of damages if needed.

Expanding the collection of data related to workforce activities can take many forms. Data regarding the start and end of the employees' daily activities can be collected with a higher frequency by splitting blocks of activities into shorter activities making up the larger blocks. For example, instead of just collecting the start and end time of a work shift for TV cable technicians, the employer may instead decide to register the start and end of the driving to, installation, testing, and customer training stages. Alternatively, it may be possible to expand the collection of data to categories of employees for which such data was not previously collected. Or, the employers may expand the data collection with the sole purpose of increasing the frequency from daily to per shift collection.

While there are risks of increased data collection, along with additional costs of such an extension, the potential benefits should be carefully considered. An important benefit that is often overlooked is that the data, and specifically more of it, allow an expert to identify patterns in employees' behavior and assess the strength of these patterns. Consequently, it is possible to determine categories of employees for which these patterns are representative and those for which they are not and/or conclude whether these patterns are in direct contradiction with the claims. In the context of wage and hour litigation, this benefit can be significant. Imagine a claim where individual employees allege that they were forced to work during their lunch break without any supplemental consideration from the company. Suppose that the company's policy allows for certain employees to work through part or all of the lunch break and instead leave earlier from work. Since this is a voluntary provision, some employees choose to work through their lunch break while others do not. Additionally, some employees may offset the time worked during the break to a lesser extent than the others, so that the amount of overall worked time becomes disputed. Tracking the times the employees begin and end lunch, or at least the start and end times of activities interrelated with lunch, in addition to the times in and out of the shift, can help deflect the allegations by assessing the extent to which the employees with shorter lunch periods also ended their shifts earlier. Even when the lunch begin and end times are absent, analyses of patterns based solely on shift start and end times could provide some helpful information, albeit not as extensive.

In and of itself, the extended data collection does not necessarily lead to benefits for employers. In many instances, the detailed exploration of employees' behavioral patterns may not be warranted. This is the case when all or the overwhelming majority of employees have an expected and perfectly predictable sequence and timing of activities during their work shift. In that case, the same single deterministic calculation can be applied to each employee in order to determine the length of their lunch break, for example. There is no need to study behavioral patterns in a situation when all subjects behave in the expected and similar way.

In certain cases, however, the very notion of whether particular patterns show in the data, how they look, and how to interpret them are crucial. Consider the case (Fig.1) when there is a dispute about whether employees followed a particular sequence of activities during the work shift and whether the time spent on each of those activities as measured by the data is commensurate with the claims made by the parties in the dispute. In this case, an examination of the distribution of the times when each employee has started the activity and ended it, and the superimposition of each activity next to each other, can identify the actual patterns followed by the bulk of employees.

Consider a company providing transportation services that employs a sizable number of drivers. The figure above shows the time-of-day distributions of each employee's four daily ID card swipes. As a matter of business, each driver must complete two routes per day. At the beginning and the end of each driving stage, each employee is required to swipe its ID card through a scanning device which records the scan's date and time-of-day. Assume that a few of these employees claim that they routinely worked through the lunch break and have not been paid accordingly. Because of this, they say the company owes them overtime. The height of each distribution shows the percent of all drivers' swipes occurring at a given time-of-day (indicated on the horizontal axis.) The close examination of these distributions leads to a few relevant discoveries:

  • There is evidence of an orderly time sequence of the drivers' swipes
  • There is evidence of a pattern in swiping activities as opposed to random and purely individualized behaviors
  • The apparent pattern shows that vast majority of drivers have been idle between approximately 11AM and 2PM
  • Most drivers complete the first route of the day between 6:15AM and 11AM, and the second route between 2PM and 6:30PM

These observations may prove valuable in defense against such claims. Together with legal and business related arguments, the identified pattern could be used by a defendant to argue that the time spent by drivers between the second and third swipes of the day is non-compensable. If the defendant prevails on this crucial principle, then a deterministic formula—in which the compensable time of each employee equals the sum of the differences between the first/ second and third/fourth swipes—can be applied. Ultimately, the compensable time can be compared to the time paid by the company to each of its drivers. In contrast, the common alternative scenario of computing the compensable time as the difference between the first and last swipes of the day will lead to vastly overestimated amounts. Thus, even if these data were not collected with the explicit goal of computing the compensable time for each employee, a savvy researcher can use it to infer useful and reliable pattern evidence.

The identification of behavioral patterns does not have to be limited to the time-of-day activities. It is possible to extend the analyses of patterns to weekly or seasonal fluctuations, determine patterns in behavior for the same employee over time or even compare the behavior among two or more groups of employees. The experience and diligence of an expert, along with the detailed knowledge of specific employment policies, will enhance the usefulness and reliability of the identified patterns. Note that any analyses of behavioral patterns can only be based on the observed behaviors of the bulk of the employees. This generally means that some employees may not follow the pattern identified for the majority of their co-workers. Because of this, it is possible for an expert to assess the strength of the observed pattern by examining the individual distributions' variation around the pattern's inflection points. The narrower the variation in a distribution, the more representative the pattern is for the employee population under study. As seen in Fig.1, although there is a discernible pattern, substantial variability in employee behavior remains. Such a consideration may be important in assessing the suitability, or lack thereof, of class certification.

An interesting exercise afforded by the availability of extensive time stamp data is the possibility of separating this variation in behavior specific to individual employees from the overall pattern observed across all or most other employees. Consider again (Fig.2) the distributions of swipes' time-of-day across all employees along with the swipe sequences for an individual employee - employee X. This employee ordinarily swiped for the first time at 10AM, for the second time around 2:30PM, for the third time at 3PM and finally for the last and fourth time at 8PM. Several observations can be made about this employee's behavior. Three out of four swipes lie on the outside of the bulk of the corresponding distributions for the rest of employees. In addition, it is apparent that the time difference between the second and the third swipes is rather small, unlike the typical length of the lunch break for most other employees. Such analysis of the distribution of the data for the entire population allows for an estimation of the normal variation from one employee to another. Any individual deviation beyond this normal variation can be identified as outlier behavior. This calculation has at least two advantages. First, the analysis of variation around the distributions allows for tests of statistical significance, meaning that any individual deviation can be tested to determine the likelihood of such a large deviation being generated by a completely unrelated random process. Second, the large deviations from the usual patterns of behavior can be further analyzed to determine the reason for its occurring. In case of employee X, it is apparent that the individual's behavioral pattern is uncommon and involves unusually short lunch breaks.

Instead, if the reason for identified outlier behavior proves to be a missing or erroneous data entry, it is possible to use the best estimate provided by the distributions to make inferences as to how the actual data entry most likely should have looked. Analogous to the above example, where the existing swipes are used to isolate the length of the lunch break, in certain cases the observed patterns can be used to "fill-in" gaps in the data. The information may be missing because of employee's failure to properly enter the information or by design of the recording system. Assume that for some drivers, the fourth swipe (which identifies the closing time of the last activity of the day) is missing because the employee forgot to properly swipe his or her ID badge. The end of the work day for these employees can be inferred using the information that the same worker has entered on other comparable workdays or use information entered by other employees in similar circumstances. If one finds filling-in the data undesirable, it is still possible to make certain qualitative statements regarding facts that could or could not have reasonably occurred, solely based on the observed pattern in the data.

Since the wage and hour claims can and often do impact large classes of employees, minor adjustments to the formulas used to calculate damages may lead to large fluctuation in damages estimates. The identification of behavioral patterns is therefore paramount for accurate damages estimation. In the example presented above, a not-so-careful expert may consider the start of the first activity as the start of the workday, and the end of the last activity the end of the workday. If this expert proceeds to assume that all the time between these two swipes is work time, the damages would be overestimated relative to the scenario where the expert makes an effort to first identify the activities patterns during the workday and appropriately remove all non-compensable time from the damages calculations. A blanket assumption that intra-day records of activities can be disregarded from damages calculations can and should be rebutted with a careful analysis of the patterns occurring during the day and a sound interpretation of those patterns. Therefore, even if the records collected during the workday do not identify the exact nature of employees' activity, the identification of the behavioral patterns can add to our understanding of time records and provide the logical basis for exclusion or special treatment of blocks of time in calculations of damages.


1 This is a statistical property intrinsic to large datasets which should not be confused with the practice of "multiple comparisons" when an unscrupulous expert assesses various comparisons within subsets of a larger dataset in the hope of finding a disparity within parts of the data.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions