Should Unpaid Overtime Claimants Be Concerned About Retaliation
I am often asked whether employees who bring claims for unpaid overtime are protected from retaliation by their employers. The answer, of course, is yes.
The Fair Labor Standards Act (FLSA), at 29 U.S.C. §215(a)(3), protects employees from being retaliated against for bringing a claim against their employer under the FLSA. This means that, at least the way that the FLSA is written, employees cannot be retaliated against for complaining about unpaid overtime or minimum wages under the FLSA.
The next question, of course, is what is a “claim” so as to trigger the FLSA’s protection. In Kasten v. Saint-Gobain Performance Plastics Corp. the United States Supreme Court decided that even an “oral complaint” to an employer triggered the FLSA’s anti-retaliation protections. In this case, an employer was stupid enough to retaliate against a complaining employee, and the Supreme Court decided that an employee need not file a lawsuit, make a complaint to the Department of Labor, or even send anything in writing to the employer about unpaid overtime or minimum wages in order to be protected by the FLSA’s anti-retaliation provision. So, with this decision, employers “in the know” would be foolish to even come close to retaliating.
That is the law, but employers don’t always follow the law – which is why an employee would be complaining about unpaid overtime or minimum wages in the first place.
If an employee complains about not getting overtime pay or minimum wages before a lawsuit is filed and if an employer takes and adverse action based on that complaint, he or she could have a claim for retaliation – which could take months (or longer) to resolve. If, on the other hand, an employee’s claim about not receiving overtime pay or minimum wages is through a lawsuit, the employer would have a much tougher time taking any retaliatory action. The reason, from a practical standpoint, is that most attorneys who represent employers (and management) are sure to advise their clients (employers and management) to not do anything which could be considered retaliatory against those who filed the lawsuit.
While I remain an advocate for resolving issues in advance of litigation to the extent possible, this consideration should be taken into account by any current employee who seeks to make a claim for unpaid overtime wages or minimum wages.
Practically speaking, I cannot say that employees should not worry about retaliation. But, if an employer is stupid enough to even come close to retaliating against you, then the law certainly protects you: you have legal rights and remedies, and any court who finds that you were retaliated against would like be sympathetic towards you. #in