A California employer recently learned the hard way that a competent legal strategy for defending against a Fair Labor Standards Act (FLSA) claim shouldn’t include hiring a supposed priest to dupe employees. And, yes, that is easily one of the top five weirdest sentences I have ever written. Let me explain.
In May 2022, the U.S. Department of Labor (DOL) filed a lawsuit against a company, along with its owners and general manager, that operated restaurants in Sacramento and Placer counties in California. The DOL accused the employer of implementing a scheme to avoid recording overtime hours worked by non-exempt employees and to avoid paying those employees at the overtime rate (time-and-a-half) mandated by the FLSA. Allegedly, the employer paid non-exempt employees by check for time worked up to 40 hours in a workweek, but by cash for all time worked in excess of 40 hours to ensure those hours were not recorded.
Prior to filing the lawsuit, the DOL’s Wage and Hour Division (“WHD”) conducted an investigation into the employer’s pay practices. The DOL alleged the employer attempted to impede the investigation by instructing employees to lie to federal investigators about the number of hours they worked. The WHD eventually issued findings that the employer had violated the FLSA’s recordkeeping and overtime pay requirements. According to some of the employees, it was at this time that the employer found religion . . . just not in the way one might hope.
Employees reported to the DOL that after the WHD issued its findings, the employer’s general manager arranged for a “priest” to come to the restaurant to hear employees’ confessions. Confession is a sacrament observed by many religious persons, particularly adherents to Roman Catholicism, in which a person confesses their sins to a priest to obtain absolution. Allegedly, the priest provided by the employer only had a real interest in work-related “sins.” According to the employees, during confession the priest asked employees if they had done anything to harm the employer, had any bad intentions against the employer, or had ever wronged the employer. Unsurprisingly, the DOL took the position that the employer’s purpose in bringing in the priest was to intimidate workers who had spoken with the WHD investigators.
Eventually, the employer agreed to a consent judgment that required the employer and its owners to pay a total of $145,000, which included $70,000 in back wages, another $70,000 in liquidated damages, and $5,000 in civil penalties due to the willful nature of the employer’s violations.
The consent judgment did not include any admission or finding as to the veracity of the employees’ allegations involving the priest. Nonetheless, this case, in all its outlandishness, serves as a good reminder for employers that it is a violation of the FLSA to make any attempt to interfere with a DOL investigation, or to prevent employees from exercising their rights under the FLSA, speaking with DOL investigators, or participating in an investigation. If the DOL comes knocking, and you develop a strategy that involves going online to purchase a priest costume, maybe resist the urge to go through with that strategy. Instead, contact an attorney who has experience dealing with such investigations.
- Julie A. Su, acting Secretary of Labor, U.S. Department of Labor vs. Che Garibaldi dba Taqueria Garibaldi, a California corporation; Eduardo Hernandez; Hector Manual Martinez Galindo; and Alejandro Rodriguez.