Retaliation and FLSA

When employees work overtime and are not compensated for all hours, it is natural for them to being asking important legal questions, such as:

  • How do I get paid my back wages? 
  • What are the steps in the legal process?
  • If I pursue legal action, will my employer find out and fire me?
  • What are my remedies?

Filing a lawsuit against a former or current employer understandably involves some angst and worry. For current employees, their biggest concern is usually whether they will be retaliated against for filing suit. Section 15(a)(3) of the Fair Labor Standards Act (“FLSA”) says that it is a violation 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 or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.”

Who is protected by the FLSA? 

The FLSA has an anti-retaliation provision that applies to any employee, including former employees, who wish to file suit against their employer. Employees are protected regardless of whether the complaint is made orally or in writing. Any complaints that are made to the Wage and Hour Division of the Department of Labor are protected, with many courts ruling that complaints made internally inside the business to another employer are also protected. Any employee who is “discharged or in any other manner discriminated against” because he or she has filed a complaint or cooperated in an investigation, may file a retaliation complaint with the Wage and Hour Division or may file a private cause of action seeking appropriate remedies.

What activities are protected under the overtime laws?

Section 15(a)(3) of the FLSA protects activities, such as threats or intimidation, beyond those described in the statutory language as protecting any employee who “has filed any complaint or instituted or caused to be instituted any proceeding under or related to the Act, or has testified or is about to testify in any proceeding…” 

What retaliatory conduct is prohibited by the FLSA?

When an employee wants to file a complaint, the main course of retaliation that is prohibited is discharge from employment, which includes termination, suspension or demotion.

Who is liable under the overtime laws?

Under section 15(a)(3), “any person” who retaliates against an individual for filing suit is liable. A person can also include entities so it is not limited to only one person filing suit. 

What remedies are available under the FLSA?

Section 16(b) of the Act provides that employers who violate the anti-retaliation provisions of  the FLSA’s section 15(a)(3) “shall be liable for such legal and equitable relief as may be appropriate to effectuate the purposes of section [15(a)(3)] of this title.” 29 U.S.C.A. § 216(b). The following possible remedies are enumerated in Section 16(b): 

  • Employment, reinstatement or promotion; 
  • Front pay and lost wages, including liquidated damages;
  • Reasonable attorney’s fees; and
  • Pre- and post-judgment interest. 

Have you been denied overtime pay and are worried about being retaliated against by your employer? If so, consider speaking with an experienced overtime attorney today who will protect you from retaliation and vigorously pursue your unpaid overtime claims. Josh Borsellino is an experienced overtime attorney that fights for the rights and protections of employees. He offers free consultations and be reached at 817.908.9861 or 432.242.7118. 

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