The Non-Financial Ledger: What This Cost Tomas Perez

Tomas Perez drove haul trucks underground. That is not a desk job. It is a physical job in a dark, enclosed space, operating heavy equipment in a mine owned by one of the most profitable gold extraction companies in the world. When his truck hit the wall of that mine and he was thrown into the armrest, he did what most people do when they are in pain: he went to a doctor. The doctor examined him, believed him, and signed paperwork saying he needed time off. Eighteen days. Not months. Not a year. Eighteen days.

While Perez was at home recovering, Barrick sent a private investigator to follow him. The investigator filmed him driving. Filmed him at a casino. Filmed him doing repair work at a property he owned. Barrick then used those tapes to argue, successfully, that the pain he described to his doctor was fabricated. An employee had also passed along a rumor from a friend of Perez’s that he was faking the injury to get time to work on rental properties. That rumor, combined with surveillance footage, was enough for a jury.

Perez fought this in federal district court and lost. He appealed to the Ninth Circuit and lost again. By the time the Ninth Circuit issued its opinion in June 2024, the case had been in litigation for five years. Five years of legal fees, depositions, appeals briefs, and waiting, all to contest eighteen days of medical leave. His attorney argued the whole time that Barrick should have been required to get a competing doctor’s opinion if they doubted Dr. Black’s certification. The court said no. The FMLA uses the word “may” when describing an employer’s right to seek a second opinion, not “must.” So Barrick was within its rights to skip the doctor and go straight to the surveillance van.

What this case cost Perez personally is not itemized in the court record. His job is gone. His reputation in that workplace is gone. The legal record now permanently documents that a jury found he “failed to show” his injury was real. That finding is not a neutral outcome. It brands him. It follows him into every future job application in a skilled trade that depends on physical credibility and worker’s compensation history. The injury may or may not have been real. But the process that adjudicated it relied on a private investigator filming a man gambling, rather than on a doctor examining him a second time. That is the system this ruling preserves.

Legal Receipts: What The Court Actually Said

These are direct quotes from the published Ninth Circuit opinion, Case No. 23-15043, filed June 28, 2024. Every word below comes from the ruling itself.

“The word ‘may’ is permissive. The plain language of the FMLA therefore merely provides an employer with the option to require a second or third opinion and seek recertification. It does not require an employer to provide contrary medical evidence if it doubts the validity of the original certification, let alone mandate that an employer must do so in order to challenge the sufficiency of that original certification in court.”

Ninth Circuit Opinion, Judge Tunheim, p. 8

• This passage is the core of the ruling. The court interpreted the FMLA’s permissive language to mean Barrick had zero legal obligation to obtain a competing doctor’s opinion before taking Perez to trial to dispute his certified medical leave.
• The practical consequence: a corporation with unlimited legal resources can now hire a private investigator and use surveillance footage as a substitute for medical expertise in court. A doctor’s signed certification can be defeated by a video of a man carrying a power drill.

“All circuit courts to confront the issue have rejected [the position that an employer is bound by a doctor’s findings unless it seeks a second opinion].”

“Barrick hired a private investigator to follow Perez and confirm whether he was fraudulently taking FMLA leave. Over the course of three days, the investigator captured video evidence of Perez engaging in various activities without visible signs of difficulty or discomfort, including driving through town, gambling at a casino, performing repair work at his rental property, repeatedly lifting and holding both arms over his head, and carrying and using a power drill and other tools and equipment.”

Ninth Circuit Opinion, Judge Tunheim, p. 5

• This passage documents the evidence Barrick used instead of a second medical opinion. The jury was permitted to weigh three days of surveillance footage against Dr. Black’s clinical certification. No medical counter-examination was required.
• Chest wall contusions and muscle spasms are internal injuries. They do not prevent a person from driving a car or holding a drill overhead in every moment of every day. The surveillance footage captured moments, not a continuous physiological assessment. The court’s ruling treats those moments as legally equivalent to medical testimony.

“An employee later emailed management that one of Perez’s friends told the employee that Perez ‘is faking a work related injury in order to take time off to work on personal business (fixing rental properties).'”

Ninth Circuit Opinion, Judge Tunheim, p. 5

• This is hearsay: a friend of Perez told a coworker, who told management. This second-hand rumor was part of the evidentiary record that triggered Barrick’s investigation and, ultimately, Perez’s termination.
• The ruling does not flag this as problematic. It is presented as part of the factual background leading to a legitimate corporate investigation, illustrating how thin the threshold for launching surveillance against a worker actually is.

“When Perez returned from leave, Barrick confronted Perez with the employee’s report and investigator’s findings. Perez responded that he had ‘nothing to say.’ Barrick then fired Perez after concluding that he had faked his injury and violated company policy.”

Ninth Circuit Opinion, Judge Tunheim, p. 5

• Perez exercised his right to remain silent when confronted by his employer. That is a constitutionally protected instinct. In this context, it was apparently read as confirmation of guilt. No formal disciplinary hearing, no independent review, and no second medical opinion preceded his termination.
• The gap between “employee says nothing when confronted by management” and “employee is fired for faking an injury” is the entire labor rights story embedded in this case.

Societal Impact Mapping

Public Health

The medical certification process under the FMLA exists to keep workers with genuine health conditions out of dangerous environments. This ruling erodes that protection in measurable ways.

• Perez was an underground haul truck driver. His job involved operating heavy equipment inside a mine. If he had returned to work while still suffering muscle spasms and pain from a chest wall contusion, the risk to himself and other workers underground would have been real. The certification process protected everyone on that shift, not just Perez.
• The ruling creates a documented chilling effect on FMLA use: workers who know their employer can surveil them and dispute their doctor’s findings without obtaining a competing medical opinion will face pressure to return before they are medically cleared. The math is simple. If challenging leave costs the employer nothing medically, and losing the challenge costs the worker their job, the rational worker goes back to work early.
• The types of injuries most vulnerable to this ruling are internal: spasms, contusions, soft tissue damage, and pain conditions that do not produce visible external symptoms. These are also among the most common industrial and labor injuries. The ruling effectively makes this entire category of injury easier to contest without any medical expertise.
• Five circuit courts (Second, Fourth, Sixth, Eighth, and now Ninth) have now aligned on this interpretation. That represents the overwhelming majority of the U.S. workforce. A working standard is being built, case by case, that systematically weakens the medical gatekeeping function the FMLA was designed to enforce.

Economic Inequality

The power imbalance this case documents is not incidental. It is structural. Barrick Gold Corporation had the resources to litigate this case for five-plus years. Perez had two law firms.

• Barrick Goldstrike Mines is a subsidiary of Barrick Gold Corporation, one of the largest gold mining operations in the world. The corporation has the legal infrastructure, the HR apparatus, and the budget to investigate, surveil, litigate, and appeal any individual worker’s claim indefinitely. Perez had two Nevada-based plaintiffs’ firms representing him. That is not a fair fight.
• Hiring a private investigator to tail a worker is a cost corporations can absorb. It is a cost individual workers cannot deploy in reverse. The worker cannot surveil the employer’s decision-making process, cannot subpoena corporate communications about the termination decision before filing suit, and cannot fund five years of federal litigation without ongoing income. Perez lost his income when he was fired; Barrick’s income continued throughout.
• The ruling creates an incentive structure that benefits large employers disproportionately. Small employers who cannot afford surveillance operations and extended litigation are less likely to contest legitimate FMLA certifications. The precedent primarily arms corporations with existing legal and investigative infrastructure, meaning the workers most vulnerable to it are those employed by the largest and most resourced companies.
• The FMLA’s second-opinion mechanism, which the court confirmed is optional, was specifically designed to create a level process: if the employer pays for the second opinion, the burden of disproving the certification falls on the employer’s medical expert, not on surveillance footage. By making that mechanism optional, the court removes the one procedural safeguard that required employers to match the medical credibility of the original certifying doctor.

The “Cost of a Life” Metric

The FMLA’s second-opinion procedure requires the employer to pay for the competing medical examination. Barrick chose not to use it. Here is what that choice cost, and what it saved.

What Now: Your Rights, The Regulators, and What To Do

This ruling is binding precedent in the Ninth Circuit. That means it applies to every employer in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. Here is who has oversight authority and what workers can do.

Named Parties and Legal Representatives on Record

• Defendant-Appellee: Barrick Goldstrike Mines, Inc. (subsidiary of Barrick Gold Corporation)
• Corporate Counsel (Lead): Jack S. Sholkoff and Catherine L. Brackett, Ogletree Deakins Nash Smoak & Stewart PC, Los Angeles
• Corporate Counsel (Co-Counsel): David C. Castleberry and Amanda L. Fuller, Ogletree Deakins Nash Smoak & Stewart PC, Salt Lake City; Trevor J. Lee, Hoggan Lee Hutchinson, Park City, Utah
• Presiding Judge (District): Robert C. Jones, U.S. District Court, District of Nevada
• Ninth Circuit Panel: Judges Kenneth K. Lee, Daniel A. Bress, and District Judge John R. Tunheim (opinion author)

Regulatory Watchlist

• Wage and Hour Division (WHD), U.S. Department of Labor: The federal agency with direct enforcement authority over FMLA compliance. Workers who believe their FMLA rights were violated can file a complaint at dol.gov/agencies/whd. The WHD can investigate and pursue claims on a worker’s behalf at no cost.
• Equal Employment Opportunity Commission (EEOC): If the FMLA termination overlaps with a disability or workers’ compensation retaliation claim (as Perez’s did under Nevada public policy), the EEOC has concurrent jurisdiction and can pursue additional remedies.
• Nevada Labor Commission (or equivalent state labor agency): State-level enforcement for workers in Nevada; comparable agencies exist in each Ninth Circuit state. State law sometimes provides broader protections than federal FMLA minimums.
• Occupational Safety and Health Administration (OSHA): Relevant for retaliation claims in mining and other hazardous industries. OSHA’s Section 11(c) anti-retaliation provision covers workers who report injuries and face adverse employment actions as a result.
• Mine Safety and Health Administration (MSHA): Specific to mining operations. MSHA has independent authority over worker safety and retaliation protections in mines. Barrick Goldstrike Mines operates under MSHA jurisdiction.

What Workers and Organizers Should Do Now

• Document everything before you need it. If you are injured at work, request copies of all incident reports, your medical certifications, and any written communications from your employer about your leave on the day they are created. Do not wait until you are confronted.
• Know that your employer can surveil you during FMLA leave in Ninth Circuit states. This ruling confirms that surveillance footage is admissible to contest your doctor’s certification. Be aware that activities captured on video may be used against you in court, even if those activities are consistent with a partial recovery from your specific injury.
• Contact the Wage and Hour Division immediately if you are fired or denied reinstatement after FMLA leave. Federal FMLA claims have a two-year statute of limitations (three years for willful violations). Do not wait to see if the situation resolves itself.
• Push your union to negotiate contractual language requiring second medical opinions before any FMLA certification can be contested. The FMLA sets a federal floor, not a ceiling. Collective bargaining agreements can require employers to obtain a competing medical opinion before they are permitted to challenge a certification, making the optional FMLA procedure contractually mandatory.
• Connect with worker centers and labor rights organizations in your state. In California: the California Labor Commissioner’s Office and Worksafe. In Nevada: the Nevada AFL-CIO. In Oregon and Washington: state labor councils affiliated with the AFL-CIO. These organizations provide free legal guidance and can refer you to plaintiffs’ attorneys who handle FMLA cases on contingency.
• Advocate for FMLA legislative reform at the federal level. Congress can amend 29 U.S.C. § 2613 to change “may require” to “must require” in the second-opinion provision, eliminating the loophole this ruling exploits. Contact your U.S. Representative and Senators and specify the Perez v. Barrick Goldstrike Mines ruling (No. 23-15043) by name.