Retaliation Under The Fair Labor Standards Act
Retaliation Under The Fair Labor Standards Act
Retaliation Under The Fair Labor Standards Act
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employer's wage and hour policies violate the Act and complains. Where the immediate
cause or motivating factor of a discharge is an employee's assertion of rights under the
Act, the discharge is discriminatory whether or not other grounds for discharge exist.
A.
548 F.2d 139, 147 (6 Cir. 1977). In reversing the trial court, the Dunlop court noted
that discrimination by former employers was precisely the sort of harm that Section
15(a)(3) was intended to correct. The employee is not required to be engaged in
activities covered by the Act's minimum wage and overtime provisions. Wirtz v. Ross
Packaging Co., 367 F.2d 549, 550 (6th Cir. 1943). Under certain circumstances, even
spouses of employees have received protection against retaliation. Brock v. Georgia
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B.
2.
Burns, Inc., 137 F.2d 37, 3 WH Cases 253 (3rd Cir. 1943));
3.
4.
C.
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or related to [the 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", for example:
1.
D.
2.
3.
requesting a raise;
4.
5.
When an employee does nothing more than orally complain to the employer
about wage policies, courts are split on whether the protections of Section 15(a)(3)
apply. Decisions handed down over the last several years have done nothing to resolve
this split among the circuits. The Second and Ninth Circuits have held that formal
complaints to a government agency or court will satisfy the requirements of 215(a)(3)
of the FLSA, while other courts have agreed that informal complaints to the employer
will suffice.
In Valerio v. Putnam Associates Inc., 5 WH Cases2d 389 (1st Cir. 1999), Putnam
hired Valerio for a "Receptionist/Administrative Assistant" position, and told her that the
job was considered exempt and that she would not be entitled to overtime pay. In a
letter to Putnam, Valerio said that a receptionist is not an exempt employee under the
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FLSA and insisted she be reclassified as non-exempt and paid overtime. Several days
later, Valerio was fired, allegedly because of a new modem system. The First Circuit
sided with the Sixth, Eighth, Tenth, and Eleventh Circuits, which have determined that
internal complaints to the employer will suffice, finding that Valerio's letter to Putnam
was "sufficiently definite" to inform Putnam of her rights to overtime pay. The Court
stated, however, that it must look at each case individually and held that not all written
comments and criticisms made to an employer will be sufficient.
A district court in the Fifth Circuit sided with the majority of Circuits on this issue.
In Laird v. Chamber of Commerce, 4 WH Cases2d 1629 (E.D. La. 1998), an employee
who made an informal complaint to her employer by communicating that she had
complained to the DOL was permitted to proceed with her FLSA retaliation claim
although the employer alleged that it discharged her before she actually filed a
complaint.
A recent case out of Virginia in the Fourth Circuit also held informal notice to the
employer is not sufficient to trigger the anti-retaliation protections of the Act. The
plaintiff/employee was fired after she complained that she was not being paid the
required minimum wage. The court narrowly construed the anti-retaliation provision
finding that the word "filed" in the provision clearly indicates that a "more verifiable
activity is required than merely an oral complaint to a supervisor", and dismissed the
plaintiff's claim. Clevinger v. Motel Sleepers, Inc., 5 WH Cases2d 165 (W.D.Va. 1999).
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plaintiff's allegations she was being "set up", "games were being played", and she found
certain employer actions to be rude, upsetting, or seemingly intrusive did not rise to the
level of a materially adverse employment action as they had no impact on her wages,
benefit levels, job title, or job responsibilities and privileges. Determining whether an
action is materially adverse "must be cast in objective terms." Campbell v. HSA
v. Adams Elevator Equipment Co., 941 F.2d 543 (7th Cir. 1991));
2.
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Affirmative defenses.
statute of limitations;
2.
the employee's state tort law claim arising from an alleged retaliatory
discharge is preempted by the Act;
3.
4.
employer terminates him or her prior to the employees' intended last day of work (Ayres
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Other apparent affirmative defenses have been considered and rejected by the
courts, i.e., an employer's good faith reliance on counsel and ignorance of the law.
G.
Remedies
Section 16(b) of the Act provides that employers who violate the anti-retaliation
provisions of 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):
1.
employment;
2.
reinstatement;
3.
promotion;
4.
5.
front pay;
6.
Mental Health Center, Inc., 921 F.2d 108, 111, 30 WH Cases 122 (7th Cir.
1990), cert. denied, 502 U.S. 812, 30 WH Cases 928 (1991));
7.
8.
9.
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In Lambert v. Ackerley, No. 963017v2 (9th Cir. June 10, 1999), the court
awarded $12 million in punitive damages to employees who reported that
they were not being paid adequate overtime and were subsequently fired.
th
In Shea v. Galaxie Lumber, 152 F.3d 729 (7 Cir. 1998), the Court ruled
that punitive damages could be awarded even if compensatory damages
were not.
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10.
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