"The evidence of timesheets, screenshots and time modifications belie their excuses and convenient explanation that data is simply overwritten," the motion said. "A database is not a typewriter. In this day and age, data never disappears."
Tony Cundiff, Cyber Security Expert
One of the Florida Nerds, Tony Cundiff, forensic expert has been retained by The Law Offices of Mitchell Feldman LLP and Williams Law PA to uncover timesheet related overtime fraud. The following is the copy from Law360. The below was not written by the Florida Nerds.
Sales Reps Want Sanctions Over ‘Hogwash’ OT Suit Discovery
By Alexis Shanes
Share us on: By Alexis Shanes
Law360 (October 29, 2020, 8:00 PM EDT) — A class of sales representatives asked a Florida federal court to enter sanctions against an aviation parts company, saying it has engaged in “the worst form of discovery fraud” by concealing timesheet-related evidence in the wage-and-hour suit.
The sales reps on Wednesday accused their employer of violating a discovery order by concealing changes to timesheets and phone call logs to escape claims it withheld overtime under the Fair Labor Standards Act
“Defendants’ actions and conduct are the quintessential, sanctionable discovery abuse in FLSA cases,” the employees said in their sanctions motion. “This is hogwash!”
The call for sanctions stems from a collective and class action former employee Shawn Martin leveled against PartsBase Inc. in February, claiming it treated hourly wages as a draw against sales commissions by deducting wages from commission totals in violation of federal law. The class-collective action hybrid was conditionally certified in May. In cases when his sales commissions were less than or equal to his hourly wages, Martin was expected to pay back the negative balance to the company, according to the complaint. The company also shaved off overtime hours its employees logged, coerced them into working off the clock, and threatened to discipline them if they filed overtime claims, according to the complaint.
On Wednesday, Martin and Steven Levinson, who joined the case in March, said PartsBase and its CEO, Robert Hammond, had failed to comply with the court’s electronic discovery order, according to the motion. The company was supposed to turn over electronically stored information by Aug. 25, according to the motion. But it only offered some records more than a month later and still has not provided others, such as telephone call records for roughly a quarter of the more than 40 plaintiffs involved in the action, the employees said.
Martin and Levinson also hit PartsBase with fraud allegations, saying the company “willfully refused” to show how employees’ timesheets were modified to remove overtime hours and produced “whitewashed” phone call data, according to the motion. The timesheets PartsBase produced show only a “final modified time, not the original punch time,” the motion said. During discovery, the company denied the existence of documents showing how the records were modified, contradicting previous testimony that the information was available in an electronic database and was reproducible, according to the motion.
“Defendants have engaged in the worst form of discovery fraud here by concealing and withholding the very evidence which is at the heart of this case,” the employees said in the motion. “Defendants are quite clearly and blatantly attempting to cover up their underlying scheme to avoid paying overtime wages by concealing their own timesheet evidence.” PartsBase argued that when the time records in question were altered in its system, which is maintained on Microsoft SQL Server, the new data replaced the old, according to the motion. The employees said the claim ran “contrary to the manner in which their database works” after they recruited a Microsoft SQL Server expert,
Tony Cundiff, who said the database would record changes to it. “The evidence of timesheets, screenshots and time modifications belie their excuses and convenient explanation that data is simply overwritten,” the motion said. “A database is not a typewriter. In this day and age, data never disappears.”
The employees also said PartsBase would not turn over “easily reproducible” phone records, and after independently examining those records through Verizon, they said the company had changed them by deleting calls employees made before they clocked in or while they took lunch breaks. The employees further slammed PartsBase for failing to provide a complete list of employees eligible for the class and for failing to suspend automatic record deletion procedures during the case, according to the motion.
PartsBase’s response to the sanctions motion is due Nov. 10, said Adam Hodkin, an attorney for the company. “The motion is without merit,” he said.
An attorney for the employees did not immediately respond Thursday to a request for comment.
The employees are represented by Benjamin Williams of Williams Law PA, and Mitchell Feldman of Feldman Legal Group.
PartsBase is represented by Adam Hodkin, Jon Stage and Philip Ward of Hodkin Stage Ward.
The case is Martin v. PartsBase Inc., case No. 9:20-cv-80235, in the U.S. District Court for the Southern District of Florida.
–Editing by Adam LoBelia.