Witnesses -- Tell The Truth or Risk Being Prosecuted for PerjuryIn a kind of bizarre turn of events, a woman in Houston, who testified about her duties in an FLSA misclassification case, was convicted for perjury. That’s right—she has pled guilty for testifying under oath that she regularly performed outside sales duties (and thus was properly classified as exempt).

This situation arises from a case called Lipinski et. al. v. Meritage Co. in which a number of sales associates claimed that they were improperly classified as exempt outside sales people. A nonplaintiff sales associate, Amy Fisher, testified in deposition and at trial that she left her sales office one day at least three times to give clients a tour of model homes and that was fairly typical of her years working for Meritage. During the trial, however, plaintiffs’ counsel confronted her with videotapes showing that she never left her office that day. She did not recant her testimony and again did not recant when the judge questioned her about it.

I don’t know about everyone else, but I have found that it is not unusual for a plaintiff to testify in deposition about a number of things (e.g., his duties, when he clocked in or out, whether he had authority to discipline a subordinate when he signed the disciplinary notice, etc.) that we later show was not true. I do not know all the facts that led to Ms. Fisher being investigated by the FBI and prosecuted by the US Attorney in Houston but she now faces up to five years in federal prison and a $250,000 fine.

This is a great reminder that all witnesses (whether they are testifying for the plaintiff or the defendant) should be cautioned that they are testifying under oath and could be subject to prosecution for perjury if they don’t tell the truth.