FLSA Retaliation
What is the FLSA?
The Fair Labor Standards Act (FLSA) is a federal law that establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. The FLSA created employees’ right to a minimum wage and “time-and-a-half” overtime pay when workers work more than 40 hours per week. The FLSA also prohibits employment of minors in “oppressive child labor.”
Who is protected?
Under federal law, the FLSA applies to workers of companies that have an annual gross volume of sales made or business done of more than $500,000. In addition, certain types of companies – including, hospitals, business that provide medical or nursing care for residents, schools (whether operated for profit or not-for-profit), and public agencies – are covered by the FLSA regardless of the gross volume of sales.
What type of reports are protected?
The FLSA also protects employees who report violations of the FLSA. Employers may not discharge or discriminate against any employee because the employee:
- received a credit under section 36B of the Internal Revenue Code of 1986 or a subsidy under section 1402 of the FLSA;
- provided or is about to provide to the employer, the Federal Government, or the attorney general of a State information relating to any violation of the FLSA
- testified or is about to testify in a proceeding concerning such violation;
- assisted or participated, or is about to assist or participate, in such a proceeding; or
- objected to or refused to participate in, any activity that the employee (or other such person) reasonably believed to be in violation of the FLSA.
The Supreme Court has interpreted the reporting requirement broadly. This includes verbal and written reports both external and internal reports. Under the FLSA, a verbal complaint that provides notice of the allegations to the employer is sufficient to form the basis of a FLSA retaliation claim. Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011).
What is retaliation?
Federal law prohibits an employer from terminating employment, a demotion in wage or salary, reduced title, a loss of benefits, diminished material responsibilities, or other indices unique to a particular situation” because of a protected act under the FLSA. Federal Courts have recognized that interference with benefits, including a worker’s compensation claim, may amount to a materially adverse action. Lewis v. District of Columbia, 885 F. Supp. 2d 421, 428 (D.D.C. 2012)(holding that the plaintiff could “maintain the failure to file workers’ compensation benefits on time as an alleged retaliatory action.”); see also Caruso v. Camilleri, No. 04-CV-167A, 2008 U.S. Dist. LEXIS 3175, 2008 WL 170321 at * 26 (W.D.N.Y. Jan. 15, 2008).
Generally, an employer engages in an adverse employment action if “a reasonable employee would have found the challenged action materially adverse.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219, (D.C. Cir. 2006)); see also Noack v. YMCA of Greater Houston Area, 418 F. App’x 347, 353 (5th Cir. 2011). This specifically includes acts that would have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe. Ry. Co., 548 U.S. at 68. Undoubtedly, a materially adverse employment action is more severe than “petty slights, minor annoyances, and [the] simple lack of good manners.” Escribano v. Travis Cty., 1:15-cv-331-RP, 2016 U.S. Dist. LEXIS 189425 at *37 (W.D. Tex. Aug. 25, 2016). Instead, a materially adverse action “must be likely to deter an employee from coming forward with a complaint.”
How can I prove retaliation?
Under the FLSA, it is unlawful to “discharge . . . any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under this chapter[.]”29 U.S. Code § 215. The burden-shifting framework set forth in McDonnell Douglas Corp. v. Green governs FLSA retaliation claim. 411 U.S. 792, 800-05 (1973). Under this framework, the worker “carr[ies] the initial burden . . . of establishing a prima facie case If established, “[t]he burden then [shifts] to [Defendant] to articulate some legitimate, nondiscriminatory reason for” adverse employment action. Davis v. Fort Bend Cnty., 765 F.3d 480, 490 (5th Cir. 2014). Finally, if “Defendant articulates a non-discriminatory reason for the adverse employment action, the burden then shifts back upon Plaintiff to establish that the articulated reason is unworthy of credence or mere pretext for retaliation.” Mora v. Affiliated Customs Brokers USA, Inc., EP-13-CV-367-KC, 2015 U.S. Dist. LEXIS 189055 at * 13 (W.D. Tex. March 16, 2015) (citing Smith v. Sw. Bell Tel. Co., 456 F. App’x 489, 492 (5th Cir. 2012)).
To establish a prima facie case of retaliatory discharge, an employee must demonstrate that: (1) he engaged in a protected activity, (2) the employer undertook an adverse employment action against him, and (3) there was a causal link between the plaintiff’s protected action and the employer’s adverse action.
What Damages are available?
An employee who has been retaliated against for reporting violations of the FLSA can recover past and future wage losses, reinstatement, and an additional equal amount as liquidated damages. In addition, the Fifth Circuit has recognized that an employee may also recover for mental anguish damages caused by the termination. Pineda v. JTCH Apts. LLC, 843 F. 3d 1062 (5th Cir. 2016).
Doyle Dennis Avery LLP is proud to represent employees who were retaliated against because they reported violations of the FLSA. We have previously represented employees who have alleged that they were terminated for reporting violations of the FLSA.https://doylelawfirm.com/doyle-llp-vs-republic-manufacturing-group-inc-d-b-a-republic-bag-co-and-alpha-industries-management-inc-d-b-a-republic-bag-co-wrongful-termination/. Contact us today to learn more about our firm or schedule a free consultation.
