The fear of retaliation by the employer might keep some employees from complaining about unpaid overtime or wages. Employees are likely concerned that their employer will fire them or engage in more subtle forms of retaliation if they complain. However, the Fair Labor Standards Act (the “FLSA”) forbids employers from retaliating against or punishing employees who raise concerns about their wages or overtime pay and provides remedies for employees who are subjected to retaliation.
The FLSA’s retaliation provision can be found at 29 U.S.C. § 215(a)(3), which states: “[I]t shall be unlawful for any person … to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under [the FLSA] or related to this chapter, or has testified or is about to testify in any such proceeding ….”
In short, it is illegal for any employer to fire, demote, or in other way discriminate against an employee for exercising their rights under the FLSA. The FLSA’s retaliation provision is intended to be broad and far-reaching, and to provide as much protection as possible to employees who raise good faith complaints.
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Elements of a FLSA Retaliation Claim
A claim of FLSA retaliation consists of three elements:
- The employee must have engaged in statutorily protected conduct under the FLSA or the employer erroneously believed that the employee engaged in such conduct;
- the employee must have suffered some adverse employment action; and
- a causal link must exist between the employee’s conduct and the adverse employment action.
See Brock v. Richardson, 812 F.2d 121, 123, n.1 (3rd Cir. 1987).
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Conduct Protected by the FLSA
Courts have interpreted the FLSA’s retaliation provision broadly, to protect many different types of conduct even those, which are not specifically stated in the FLSA. The provision covers both formal complaints (such as filing a lawsuit or contacting the Department of Labor) and informal complaints (such as complaining to a boss, supervisor, or HR Department).
In the case of Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011), the Supreme Court held that even oral complaints are enough to give rise to a claim for FLSA retaliation. As soon as an employee gives the employer “fair notice” of his concerns regarding the overtime or minimum wages, the FLSA retaliation provision applies. Id. at 13.
The FLSA’s retaliation provision also covers complaints brought by one employee on behalf of another employee. In Starnes v. Wallace, No. 15-41341 (5th Cir. Feb. 24, 2017), Ms. Starnes was allegedly terminated for raising complaints of underpayment of wages to a co-worker, Mr. Vincent. The Court held that even these third-party complaints are protected under the FLSA retaliation law.
Moreover, even if the employee’s alleged FLSA violations are later proven inaccurate, the employee is still protected so long as the complaint was made in good faith.
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What Constitutes Adverse Employment Action?
The most common retaliatory act for engaging in protected conduct is discharge. This includes “constructive discharge” where the employer makes the workplace so hostile or difficult that it forces the employee to quit out of frustration. Other discriminatory acts such as harassment on the job, wage reductions, and post discharge black listing or disparagement are also prohibited. Actions such as changing an employee’s seat at work, changing work assignments, making an employee stay in one place while at work, and finding fault with an employee’s work product may constitute unlawful retaliatory acts if they are done because an employee has asserted rights under the FLSA.
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Causal Link Between the Employee’s Conduct and the Adverse Employment Action
In presenting proof of a retaliation claim, the employee must establish each of the elements noted above. The third element, a causal link between the employee’s complaints and the adverse action, is most often the one in dispute. The strength and nature of the employee’s evidence concerning this element determines the allocation of proof. However, courts understand that it is unlikely that employees will have direct evidence of the FLSA retaliation. Few employers will say, “I am firing you because you complained about your unpaid overtime,” and the ones that do will deny it in court.
These claims are usually proven by circ*mstantial or indirect evidence. In some cases, the employer comes up with a pretextual reason, other than the employee’s complaints, as the cause for adverse action. These are referred to as “pretext” cases. Other times, the employer may have had legitimate reasons for the adverse action but the evidence shows that both the lawful and unlawful reasons influenced the employer’s action. These are referred to as “mixed-motive” cases.
The easiest way to establish a sufficient causal link is by showing that only a very brief period of time separated the assertion of statutory rights and the adverse employment action.
For example, an employee claiming that she is misclassified as exempt from overtime may have received excellent reviews and evaluations up to that point. Then after complaining to her employer, her reviews suddenly turn negative, and an expected promotion is denied. In this example, the employee may be able to prove that these negative reviews are pretextual and that the employer actually sought to punish her for asserting her FLSA rights.
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Remedies for FLSA Retaliation
In FLSA retaliation claims, the employee has been wronged twice. The first time is the actual FLSA violation itself, whether it is unpaid wages, unpaid overtime, or being paid less than the minimum wage. The second time is the adverse action taken by the employer following the employee’s complaints about the first wrong.
Under the FLSA employees can recover the wages they are owed, additional liquidated damages equal to the wages they are owed (in other words, employees get double the amount they are owed), and attorney fees and costs.
However, the FLSA provides additional remedies for employees who are the victim of FLSA retaliation. These remedies are broader than those allowed in FLSA cases (such as claims for unpaid overtime or minimum wage). As a result, the damages in FLSA retaliation cases can be significantly higher than in FLSA cases where there was no retaliation.
In FLSA retaliation cases, employees get their unpaid wages, as mentioned above, and they can also recover their lost wages as a result of the adverse action. The lost wages are usually measured from the date of the adverse action to the date a judgment is entered. Alternatively, employees may be able to recover compensatory damages (which could be greater than the amount of their lost wages) and liquidated damages in an amount equal to the employee’s actual damages.
Some courts have even held an employee may recover emotional distress damages relating to an unlawful termination and others have even held that punitive damages may be appropriate in FLSA retaliation cases. See Travis v. Gary Community Mental Health Center, 921 F.2d 108, 112 (7th Cir. 1991).
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Conclusion
It is unfortunately common for employers to cheat employees out of wages by violating the FLSA. However, some employers are so brazen in their desire to steal from employees that they respond to FLSA complaints by taking retaliatory action against employees. Congress suspected this would be the case, and drafted the FLSA retaliation provision to protect employees who wished to raise concerns about unpaid wages.
As the Supreme Court has noted, “it needs no argument to show that fear of economic retaliation might often operate to induce aggrieved employees quietly to accept substandard conditions.” Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 (1960). Therefore, the Court concluded, “effective enforcement [of the FLSA] could thus only be expected if employees felt free to approach officials with their grievances.” Id.
The guiding principle of the FLSA retaliation provision is an attempt to encourage employees to stand up to unlawful actions by their employers. If you have any questions about FLSA retaliation law, unpaid wages, or employment law contact Gulisano Law for a free consultation.
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