Many employees may be discouraged from complaining about their employer’s unfair wage and hour policies because they are scared of being fired as a result. Is that something an employer can legally do?
The Fair Labor Standards Act (FLSA), which establishes the minimum wage requirement and overtime pay requirement, prohibits employers from firing or discriminating against an employee because the employee has filed any complaint under or related to the FLSA. So, if an employee files a complaint with the Wage-Hour Division of the Department of Labor, and his employer fires him for it, the employee can bring a suit for retaliation.
An employee can show that he was fired in retaliation for complaining about a wage or hour violation by establishing that he was engaged in protected activity, that he then suffered an adverse employment action, and the protected activity was a cause of his adverse employment action.
The FLSA explicitly states that an employer cannot retaliate against an employee for “filing any complaint.” This includes oral and written complaints. For example, if an employee verbally complains to management about being shorted overtime pay he felt he was due, the employee is engaged in protected activity. So, the FLSA protects informal, internal complaints.
However, not all complaining will be protected. The complaint must be clear enough that a reasonable employer would understand that the employee is asserting rights under the FLSA. Further, the complaint must concern a violation of the law and address the potential illegality of the employer’s actions. So, while the FLSA protects informal, internal, and oral complaints, it does not protect vague or abstract expressions of dissatisfaction.
Similarly, an adverse employment action is not limited to being fired. A reduction in pay or job duties could also be an adverse employment action. Usually, an action that costs an employee money is adverse. The standard used is whether a reasonable employee would think that the action is materially adverse such that he would be discouraged from making his complaint.
As mentioned above, a reduction in pay or job duties would be materially adverse, but so would a change in supervisor, harassment, or creating a hostile work environment. For example, an employer giving an employee additional work and demeaning or humiliating assignment would be an adverse employment action.
In some cases, causation is obvious—the employer explicitly states that anyone who reports a wage or hour violation will be fired and then follows through on his promise. In other cases, causation can be inferred from the timing of the adverse employment action, the employer being particularly angry at a complaint, or the employer shifting between different explanations for the adverse action.
For example, an employee walks into his manager’s office to complain about an overtime issue and is fired the next day. The timing there will probably support an inference that the employee was fired in retaliation. Similarly, an employee walks into his manager’s office complaining about an overtime issue and is later fired because his employer tells him that his work has been unsatisfactory. When the employer inquires further, the employer then tells the employee he was fired because the manager received complaints about his attitude from other workers. The changing of reasons for the employee’s firing might also support an inference that the firing was in retaliation for the complaint.
Courts have considerable discretion in determining what remedy is appropriate for retaliation. The FLSA states that a court can grant legal relief—damages—or equitable relief—e.g. reinstatement—depending on which will better serve the purposes of the FLSA. However, there is no clear answer to whether an employer can be liable for damages for mental distress or for punitive damages.