Protection From FLSA Retaliation

The Fair Labor Standards Act (FLSA) provides a national minimum wage along with a rule requiring that workers be paid overtime at one and a half times their normal rate for every hour worked over 40 in a given week. Unfortunately, these simple rules are frequently violated by employers in Florida and around the country, whether due to innocent mistakes such as calculation errors or misunderstandings over who is covered by the law, or due to outright fraud and wage theft.

Employees have the right to know that their regular wages and overtime hours are being calculated correctly, and they have the right to inquire about their wages without fear of retaliation. The FLSA provides robust protections to employees when it comes to retaliation or otherwise exercising rights under the Act. The whistleblower retaliation attorneys at Guttman, Freidin & Celler stand up for workers when they blow the whistle on wage and hour violations and if they are discriminated against for their actions. If you are a Florida employee concerned about wage theft or other wage and hour violations at work, or if you have been harassed at work or fired for bringing wage and hour issues to the attention of a supervisor or the department of labor, call Guttman, Freidin & Celler for a confidential discussion about your options and any remedies you may have.

Coverage and Rights Under the FLSA

Almost all businesses are covered by the FLSA. The Act covers businesses and organizations that have at least two employees and have at least $500,000 annually in sales or whose work involves interstate commerce. This broad definition encompasses most employers in the country.

Employees are covered unless specifically exempt. The major categories of exempt employees are:

Administrative, executive and professional employees: These employees are exempt from minimum wage and overtime requirements under the so-called “white-collar” exemption. To be exempt, these employees must be paid at least $455 per week on a salary basis and must meet other criteria specific to their exemption. These criteria generally relate to matters such as the degree of independent judgment and discretion the employee exercises, the employee’s level of supervisory authority over others, and the nature of the work performed and knowledge or skills required.
Independent contractors: The FLSA only applies to employees and not independent contractors. However, employees are frequently misclassified as independent contractors and miss out on the minimum wage and maximum hour protections they are entitled to. A long list of criteria goes into determining whether a worker is an employee or an independent contractor, such as who sets the hours, whose tools are used, whether the work performed is a regular part of the company’s business, etc. Employers might misclassify workers on purpose to avoid paying overtime, or they might misunderstand the law and misapply the exemption.
Other exceptions include highly compensated employees, outside salespersons, computer professionals, and miscellaneous others. Each exemption has specific criteria that must be met to qualify as exempt.

Nonexempt employees must be paid at least the minimum wage. The federal minimum wage is currently $7.25 an hour, but states can enact higher minimum wage rates if they choose. Florida is one such state with a minimum wage above the federal level. Here workers must earn at least $8.65 an hour. Tipped employees can earn a lower minimum wage according to a set of complicated rules that are often violated either purposely or unintentionally.

In addition to the minimum wage, the FLSA requires employees to be paid overtime at one and half times their regular rate of pay for all hours over 40 worked in a week. This includes any hours the employee is “suffered or permitted” to work. For instance, if an employee stays beyond their shift to finish a task, they must be compensated for that time, even if the employer did not authorize them to stay past their shift. An employee could be disciplined for working without authorization, but they would still be entitled to wages earned.

Retaliation Is Prohibited Under the FLSA

Section 15(a)(3) of the FLSA makes it a prohibited act for an employer 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 this 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.”

The FLSA’s broad retaliation protections include complaints to the Department of Labor as well as complaints made internally within the company. Even an oral complaint, such as questioning whether one’s wages or paycheck is accurate, is protected from retaliation. An employee is even protected from retaliation for inquiring about the wages of another worker.

So long as the employee is making a good faith complaint, the worker should be protected from discrimination for making the complaint. Discrimination or retaliation could include any negative job action, including termination, demotion, transfer, assignment, negative working conditions, a change in job duties, or constructive discharge. Constructive discharge occurs when an employer makes working conditions so unpleasant that the employee is forced to quit.

The FLSA allows an employee to file a retaliation complaint with the Wage and Hour Division of the Department of Labor, or the employee can file a private cause of action (lawsuit) in court. Remedies for retaliation include employment or reinstatement and lost wages plus liquidated damages equal to double the amount of lost wages, so the employee actually recovers three times the amount of lost wages. Employees who are successful on a retaliation claim can also get their attorney’s fees paid for by the employer.