RETALIATION CLAIMS UNDER THE FEDERAL WAGE LAW

The Fair Labor Standards Act (“FLSA”) not only requires that employers pay minimum and overtime wages, it also prohibits employers from retaliating against their employees for complaining about their wages. The FLSA makes it unlawful for employers to “discharge or in any manner discriminate against any employee because such employee has filed a complaint or instituted … any proceeding under or related to [the FLSA].” 29 U.S.C. § 215(a)(3). To establish a case for retaliation under the FLSA, an employee must prove three elements: (1) the employee engaged in protected activity under the FLSA, (2) the employee subsequently suffered adverse action by the employer, and (3) a causal connection existed between the protected activity and the adverse action.

A “protected activity” can be either formal or informal. For example, if the employee formally files a complaint against the employer in court alleging unpaid wages, the employer cannot thereafter fire the employee for filing that complaint. However, “informal” complaints could also lead to an FLSA retaliation claim. For example, the employee may orally complain to the employer about unpaid overtime wages. If the employer thereafter fires or takes other adverse action against the employee, the employer could be held liable for unlawfully retaliating against the employee. The bottom line is: if the employee makes some form of complaint (either written or oral) that puts the employer on notice that the employee is asserting his or her rights under the FLSA, then the employee’s complaint will likely be considered “protected activity.” The employee does not need to mention the FLSA by name. However, the employee’s complaint also cannot be a general grievance; it must be sufficient in both content and context to put the employer on notice that the employee was asserting his or her rights under the FLSA. A federal court in Florida recently found that the employees’ complaints that they were “improperly paid” were too vague to constitute “protected activity.” Barquin v. Monty’s Sunset, L.L.C., 2013 U.S. Dist. LEXIS 144076, at *8-9 (S.D. Fla. Oct. 2, 2013).

An “adverse action” is any action taken by the employer that causes some injury or harm to the employee. The most straight-forward example of “adverse action” is an employer terminating or firing the employee. However, demotions or pay cuts could also constitute “adverse action.” Other employment actions, such as job transfers or reassignments, will generally not be considered “adverse actions” on their own, but could rise to the level of “adverse action” under certain circumstances. In general, if the employer’s actions would dissuade a “reasonable worker” from making or supporting a charge against the employer, then the employer’s actions would likely be considered “adverse.”

Finally, the employee must establish “a causal connection” between the protected activity and the adverse action. Unless the employer explicitly states, “I am firing you because you filed an FLSA complaint,” it is unlikely that the employee can show direct evidence of the existence of a “causal connection.” However, the employee could show a “causal connection” through circumstantial evidence. For example, if the employer took adverse action against the employee within days after the employee engaged in protected activity, the close temporal proximity could serve as circumstantial evidence of a “causal connection” between the protected activity and the adverse action.

Employers should keep in mind that the FLSA retaliation provision also covers employees who are exempt from the FLSA’s minimum wage and overtime wage provisions. In other words, even when the employer is not required to pay the employee minimum or overtime wages, the employer might still be held liable for retaliating against the employee if the employer took adverse action against the employee based on the employee’s mistaken but reasonable complaint that the employer was violating the FLSA’s minimum or overtime wage provisions.

Peter T. Mavrick has successfully represented many employers in labor and employment matters. This article is not a substitute for legal advice tailored to a particular situation. Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: peter@mavricklaw.com.