retaliation claims under the flsa

Retaliation Claims Under the FLSABass Berry & Sims PLC

Retaliation

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 the FLSA, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.

Elements of Claim forUnlawful Retaliation

1) participation in protected activity under the FLSA;2) an adverse employment action; and3) a causal link between the activity and the adverse action.

Protected Activity

Plaintiff must demonstrate making of a complaint► Employer must have fair notice ► Must be sufficiently clear and detailed for a

reasonable employer to understand it as an assertion of rights

Protected Activity/Oral Complaints

Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011).► Analyzed “filed any complaint” language

- Oral complaints may be sufficient- Must be sufficiently clear and detailed for a reasonable

employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.


Manfield v. Alutiiq Int’l Solutions, Inc., 851 F. Supp. 2d 196 (D. Me. 2012).► Plaintiff called HR department to ask about

the discrepancies in the security officers’ timesheets. Plaintiff called HR a second time to ask when the pay discrepancies would be corrected.

► Not sufficient to put employer on notice of his intent to institute an FLSA action.


Minor v. Bostwick Laboratories, Inc., 669 F.3d 428 (4th Cir. 2012).► Employee orally complained to COO that her

supervisor had willfully violated FLSA during meeting.

► Court held oral complaints could be protected under FLSA because employer was on notice.- Meeting was specifically called to express

concerns about FLSA violations indicating that employee and COO had detailed understanding of the issues.


Hawks v. Forest River, Inc., 2011 U.S. Dist. LEXIS 129891 (N.D. Ind. 2011).► Employee’s statement to her supervisor that

she “was aware that the guys in our group were making 3 to 400 dollars more a week than the women were” was not sufficiently clear to indicate she was asserting rights protected by FLSA.


Courtright v. Bd. of County Comm’rs, 2011 U.S. Dist. LEXIS 60017 (W.D. Okla. 2011).► Employee’s statement that he did not want to

attend a training session on his day off without pay was insufficient to be understood by a reasonable employer as making an overtime complaint or otherwise asserting FLSA rights.


Lasater v. Texas A&M Univ. Commerce, 495 Fed. Appx. 458 (5th Cir. 2012).► Director of the Office of Financial Aid and

Scholarships comments to auditor were made as part of her job description/responsibilities and were insufficient to assert her rights under the FLSA.

Protected Activity/No Underlying Violation of FLSA

Good faith belief► Love v. ReMax, 738 F.2d 383 (10th Cir. 1984);► Sapperstein v. Hager, 188 F.3d 852 (7th Cir.

1999).Objectively reasonable belief► Byethewood v. Unisource Worldwide, Inc.,

413 F. Supp. 2d 1367 (N.D.Ga. 2006);► Burnette v. Northside Hosp., 342 F. Supp. 2d

1128 (N.D. Ga. 2004).

Retaliation Protection for Any Employee

Regardless of whether employee works in interstate commerce. Wirtz v. Ross Packaging Co., 367 F.2d 549 (5th Cir. 1966).

Former Employees. Dunlop v. Carriage Carpet Co., 548 F.2d 139 (6th Cir. 1977).

Extending Retaliation Protection to Third Parties

Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863 (2011).► Holding that the anti-retaliation provision in Title VII was meant to

cover a “broad range of employer retaliatory conduct,” and finding a terminated employee had standing to bring a retaliation claim under Title VII because he was fired after the employer learned that his fiancé had filed a sex discrimination charge with the EEOC.

Can Thompson be extended to FLSA retaliation claims?► Maybe. See, O'Donnell v. Am. at Home Health Care & Nursing

Servs., 2013 U.S. Dist. LEXIS 55463 (N.D. Ill. Apr. 18, 2013).- Refusing to dismiss wife’s claims that she was retaliated against

because her husband complained about an FLSA violation.- Wife’s claims may fall within the “zone of interest” test.

Extending Retaliation Protection to Third Parties

Can a prospective employer be held liable for retaliation for refusing to hire an employee who has asserted their rights under FLSA?► No. See, Dellinger v. Sci. Applications Int'l

Corp., 649 F.3d 226, 229 (4th Cir. 2011).- FLSA prohibits retaliation “against any employee.” - The parties must have an employee/employer

relationship, and courts have consistently refused to extend protection to job applicants.

Causation Standard

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) (“but for” – ADEA)Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517 (U.S. 2013) (“but for” – Title VII retaliation)McBurnie v. Prescott, 511 Fed. Appx. 624 (9th Cir. 2013) (“but for” jury instruction upheld in FLSA retaliation claim)

Damages for RetaliationReinstatement► If reinstatement is found inappropriate

(employee guilty of misconduct before discharge, bitter relationship, etc.) court may order front pay. Avitia v. Metropolitan Club, 49 F.3d 1219 (7th Cir. 1995).

Back Pay► May also include fringe benefits

Damages for RetaliationLiquidated Damages► Moore v. Appliance Direct, Inc., 708 F.3d 1233

(11th Cir. 2013).- Court has discretion to award, or not to award,

liquidated damages, after determining whether to do so would be appropriate under the facts of the case.

- Follows reasoning of 6th and 8th Circuits► Not available if no lost wages

Damages for RetaliationEmotional Distress► Prevailing view – recoverable. Moore v.

Freeman, 355 F.3d 558 (6th Cir. 2004); Travis v. Gary Community Mental Health Ctr. Inc., 921 F.2d 108 (7th Cir. 1990);

► But see Douglas v. Mission Chevrolet, 757 F. Supp. 2d 637 (W.D. Tex. 2010).

Damages for RetaliationPunitive Damages► Courts are divided

- Recoverable. Travis v. Gary Community Mental Health Ctr., 921 F.2d 108 (7th Cir. 1990); Lewey v. Vi-Jon, Inc., 2012 U.S. Dist. LEXIS 71237 (E.D. Mo. May 22, 2012); Campbell-Thomson v. Cox Communs., 2010 U.S. Dist. LEXIS 43977(D. Ariz. May 5, 2010).

- Not recoverable. Snapp v. Unlimited Concepts, Inc., 208 F.3d 928 (11th Cir. 2000); Allen v. Garden City Co-Op, Inc., 651 F. Supp. 2d 1249, 1260–64 (D. Kan. 2009).

Attorneys’ Fees and Costs

retaliation claims under the flsa

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