Free Statement - District Court of Arizona - Arizona

EXPERT REPORT OF BRIAN T. FARRINGTON IN HUT T ON, ETAL, v. BANK OF
AMERICA
I was retained by Ryley Carlock & Applewhite, counsel for defendant, to provide a
professional opinion on four issues. First, I was asked to opine on whether the job of Client
Manager in both the Premier and Small Business departments of defendant Bank of American
included all the elements of the administrative exemption in the Fair Labor Standards Act,
Section i3(a)(l), as thejob was designed. Second, I was asked to compare the job as designed to
the job as described by incumbents to see if there was any signiiicant discrepancy, Third, I was
asked to use the same investigative techniques I used as an investigator and supervisory
investigator employed by the United States Department of Labor, Wage and Hour Division to
determine if there was any evidence that the defendant pressured Client Managers to report hours
worked inaccurately. Finally, I was asked to determine if there was any evidence that employees
did in fact report hours worked inaccurately.
In the course of presenting my opinions, it will be necessary to look at and comment on
how plaintiffs’ expert, Oran Clemons, addresses certain issues,
BACKGROUND AND QUALIFICATIONS
I was employed by the United States Department of Labor, Wage and Hour Division
("Wage and Hour" or "USDOLfWI—l") tiorn 1975 to 1989, with 18 months off for graduate
school, From 1975 to 1984, with 18 months off for graduate school, I was a Cornpliance Officer
(a/ic/a "Investigator") in Chicago, Illinois and then in Fort Worth, Texas. My primary iirnction
was to enforce the laws administered by the Wage and Hour Division, primarily the Fair Labor
Standards Act ("FLSA"). i conducted approximately 500 to 600 investigations during this time,
as well as 300 to 400 more limited cornpliance actions. In almost every investigation I
conducted the application of the 13(a)(i) exemption was an issue, and I was called upon to
determine if the subject employer had properly classified its employees as exempt. From 1984 to
1989 I was the Assistant District Director in Dallas (the position is alternatively called “Director
of Enforcement"). I supervised from I2 to I6 investigators in this position. My duties included
assigning investigations to my subordinates, providing them with guidance as needed during
investigations, and reviewing completed investigations, In reviewing investigations, I evaluated
whether the evidence supported the investigators’ iindings and conclusions and whether the
FLSA had been properly applied, Again, the l3(a)(l) exemption was in issue in the vast
majority of investigations. When the agency was tunable to resolve outstanding issues, I made
the decision {jointly with our attorneys and Regional Ofiice personnel) whether a tile was
suitable to send to the Regional Solicitor of Labor with a recommendation for litigation. I
estimate that I supervised approximately 5,000 investigations while I was Assistant District
Director.
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I leii the Department of Labor in 1989 and went into private consulting in Wage and
Hour and other labor matters with a consulting iirm called Harry Weisbrod Associates, which I
have since purchased. I also attended law school after leaving the Department of Labor and
received my J .1). from the Texas Weslyan School of Law and was licensed to practice law in
1994. While my law practice consists almost exclusively of representing management clients in
Wage and Hour and EEOC matters, I try to appear equally for both plaintiffs and defendants as
an expert witness. A copy of my resume is attached to this report.
DATA AND OTHER ¥NFORMA'I‘ION CONSIDERED IN FORMING OPIDUONS
1. Complaint filed in Maricopa County Superior Court (10/30/03)
2. Answer filed in Maricopa County Superior Court (I 1/1 Sr'03)
3. Amended Answer Bled in Maricopa County Superior Court {1/I 3/04)
4. P1aintiiT’s Motion for Leave to Amend her Complaint to Join Opt·in
Plaintiff Barbara Massignani as a Named Plaintiff Representative of a
Class of Others Similarly Situated in Texas tiled in United States District
Court, Arizona District (/10/05)
5. First Amended Complaint filed in United States District Court, Arizona
District (3/ l0/05)
a. Declaration of Barbara Massignani
b. Central Premier Banking Group; Client Manager Ranking Report;
Second QTD 2002
6. Plaintit’£’s Motion to Proceed Under 29 U.S.C. § 2l6(b) and Supporting
Memorandum tiled in United States District Court, Arizona District
(12/13/03)
7. Det`endant’s Response to Plaintift`s Motion to Proceed Under 29 U.S.C §
2l6(b) Sled in United States District Court, Arizona District (i/6/04)
8. Defendant’s Supplemental Response to Plaintiff" s Motion to Proceed
Under 29 U.S.C. § 2l6(b) filed in United States District Court, Arizona
District (1/8/04)
9. Reply in Support of Plaintii°l"s Motion to Proceed Under 29 U.S.C. §
216(b) iiled in United States District Court, Arizona District (1/22/04)
a. Decimation of Kaye Hutton & Exhibits
Declaration of Nancy Lyftogt & Exhibits
Declaration of Janice Peterson 8:; Exhibits
Declaration of Donna M. Larkin & Exhibits
I0. Plaintiii”s Motion for Rule 23 Class Certification and Supporting
Memorandum tiled in United States District Court, Arizona District
(6/23/04)
a. Declaration of Kaye Hutton
b. Decimation of Donna M. Larkin
c. Declaration of Kaye Hutton
d. Declaration of Nancy Lyttogt
e. Declaration of Janice Peterson
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IH. REPORTINGHOURS WORKED
I have also been asked to determine if there was any evidence that the defendant
pressured Client Managers to report hours worked inaccurately, and if there was any evidence
that employees did in fact report hours worked irraccurately. I am aware that assertions have been
made by the plaintiffs in certain ofthe documents that I reviewed that they felt pressure to report
fewer hours than they worked, I am not a fact witness, and where the information I have
conflicts with that ofthe plaintiffs, the trier of fact will have to resolve the matter.
I can say, however, that as a Wage-!-leur Investigator and later supervisor, I have
interviewed thousands of employees about time recording. I believe that this experience has
given me a good sense of when an employee is telling me the truth. In interviewing Client
Managers, I found no one who felt in any way pressured either not to work overtime when it
was necessary, or not to record their hours of work, including overtime hours, accurately. A few
employees freely acknowledged that they had not filled out their time sheets accurately, but had
instead just written down a pro forma schedule, Even these employees asserted categorically
that they just didn’t want to be bothered with the hassle of keeping accurate time records, and
that they were not pressured by anyone to do what they did.
COMPENSATION
Professional services rate for expert consultation is $250 per hour, and for testimony in
deposition or at trial, $300, plus reasonable expenses. /_
Gu ·
Dated: July 19, 2005 Brian T. Farrin on
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