Hell hath no fury like [the DOL] scorned.

William Shakespeare (sort of)

Last December I blogged about the arrest of a reluctant (recalcitrant, evasive, or whatever) New Jersey restaurateur who had failed to produce various records sought by the US Department of Labor as part of a compliance investigation. At the time, “really?” was the first thing that came to mind. This was because I hadn’t actually heard about such an arrest, although I supposed they occurred. However, when I searched the DOL website using the keyword “arrest,” only one other arrest popped up (involving a Virginia employer who failed to pay back wages).

Now there are three.

DOL recently issued a press release announcing that US Marshals had arrested another restaurateur (this time in New York) for the same reason—failure to provide records. DOL opened an investigation during the summer of 2021 and “issued an administrative subpoena in July, to determine if the employer’s pay practices complied with the Fair Labor Standards Act. . . .” When the employer failed to furnish his records, DOL’s Office of the Solicitor got involved and obtained a series of court orders that culminated in a finding of contempt along with some stiff fines and a warrant for the arrest of the restaurants’ owner.

I can’t hazard a guess as to how many employers push DOL’s patience so far that owners have been arrested; however, it is clear that DOL is now flexing its muscles in a very public manner.

So, I’ll repeat my admonition here. Things go much better when an employer cooperates with a DOL investigation. That does not mean that employers have to agree with an investigator. And that does not mean that employers can’t protect their rights to due process. Cooperating with an investigation means taking it seriously. Cooperating with an investigation means being responsive. When an employer signals its seriousness, an investigator is much more likely to respond to reasonable requests such as additional time to furnish records or to work out what records actually are needed.

The level of cooperation can also tip the scales when the investigator is considering whether an FLSA or SCA violation is willful, which can have a significant impact on an employer’s financial liability as well as influence whether a contractor might be debarred. And, as I said before, coping with the burdens of an investigation are not desirable, but they’re far better than a perp walk.

I’ll stop counting now.