Usually, it is the USDOL that is seeking sanctions against an employer who has, in wholesale fashion, violated the Fair Labor Standards Act. Well, for once that wheel has turned the other way. A federal judge has just sanctioned Labor Secretary Tom Perez for discovery failures and the Court prevented the government from calling witnesses at trial. Further, the lawyer representing the agency has sought permission to withdraw from the case. The case is entitled Perez et al v. Virginia Marble and Granite Inc. et al, and was filed in federal court in the Eastern District of Virginia.

The Judge granted three motions for sanctions filed by the Company, “for reasons stated from the bench” in an Order filed a few days ago. The Judge also barred the Secretary from discussing a damages calculation at trial and denied the agency’s motion to extend the discovery deadline; that motion was filed five days after discovery closed. The agency admitted that several unexpected medical emergencies involving the agency attorney’s son delayed its discovery responses.

The agency had sued the Company, alleging overtime violations involving forty-six employees. The Complaint alleged that the Company paid some workers a flat rate for each day of work, but not the required time-and-a-half when they did overtime work. The agency also charged that the Company was altering their records to make it appear that the employees were paid proper overtime.

The Company, for its part, filed three sanctions motions, alleging discovery derelictions and deficiencies; the Company requested that the Court bar testimony regarding the agency’s damages calculation or, even better, dismiss the case completely. The Company contended that the Secretary failed to himself appear or make an investigator available for a deposition, failed to disclose the agency’s damages calculation and witness lists under Rule 26(a) and failed to respond to written discovery requests. The Company sought to accommodate scheduling issues and many times had asked for the damages calculation and witness list.

The Takeaway

This makes me feel good—even the Secretary of Labor can be sanctioned for failure to comply with discovery deadlines and protocols in federal court. I have found state courts much more lenient on discovery issues and failure to meet deadlines.

Good way to start the holidays!