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Overtime & Minimum Wage: What Can I Do If My Paycheck Is Wrong?

| Dec 24, 2013 | Workers' Compensation Retaliation, Wrongful Termination |

Wage Attorney Answers: What should I do if I’m fired for complaining about not being paid overtime wages at time and a half?  How do I get my employer to pay me what I’m entitled to?

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Most people know that they have a right to a minimum wage, and most people know that they are entitled to overtime for working more than 40 hours in a week. What happens though, when an employer fails to comply with these rules? Do you need to be afraid of retaliation if you complain?

Under the Fair Labor Standards Act (FLSA), a failure to pay an employee for all hours worked, minimum wage, or overtime can often lead to an award of not only lost wages but also “liquidated damages” (double the amount you should have been paid in the first place) and attorney’s fees. But what good is getting the wages you are entitled to, if your employer terminates you for complaining?

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As the employment law attorneys at The Spitz Law Firm know, the FLSA provides for broad relief when employers retaliate against their employees for making complaints about wage and hour violations. In fact, several Courts throughout the country (to include the Sixth Circuit that covers Ohio) have found that employees who have been retaliated against can recover not only economic damages, but also damages for emotional distress.

Congress amended the FLSA in 1977 order to ensure that employees felt free to complain about violations of the FLSA. In enacting the amendment, Congress recognized that regardless of the allowance for liquidated damages and attorney’s fees for violations, employees nonetheless could be retaliated against, or even terminated, if they complained. As a result, there was concern that many employees would keep quite out of fear. Thus, in order to ensure Courts had all the tools necessary to prevent retaliation, Congress incorporated rather broad language into the law:

Any employer who violates the provisions of section 215(a)(3) of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this title, including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages.

Courts interpreting this language have found that it plainly allows more damages than just lost wages and liquidated damages. Instead, it provides for any “legal or equitable relief.”

If you read the rest of the law, you will notice that it list examples of what kind of relief may be appropriate- employment, reinstatement, promotion, and so on. Where do Courts get the idea that damages for emotional distress can be awarded? The devil is in the details. While the law does not specifically state “emotional damages,” it is also non-exhaustive. Notice the phrase “including without limitation.” That means the listed remedies are merely examples, and that Courts can indeed award any damages that are appropriate to accomplish the purposes of the anti-retaliation clause. This can include emotional distress.

The Sixth Circuit Court of Appeals first recognized the right of an employee to recover emotional damages under the FLSA in Moore v. Freeman, decided nearly ten years ago. In that case, Moore was fired after he complained about violations of the FLSA. Moore testified that as a result of being fired, he felt “demoralized,” and that he had worried about paying the family’s bills. Because Moore also lost his health insurance, he had to pull his children out of their soccer league because he feared that they might get injured at a time when he had no insurance coverage. He also testified that the stress of having lost his job affected his relationship with his children – one of whom drew a picture of him as a monster – and with his wife. Moore’s wife testified that Moore had trouble sleeping during the period he was between jobs, and a friend of his testified that Moore became short-tempered, lost his appetite, and began having neck pains. As a result, Moore argued that he was entitled to damages for emotional distress in addition to lost wages. At trial, the jury found for him and awarded him roughly $10,000 in lost wages along with $40,000 for mental and emotional distress. The employer appealed, arguing that emotional damages weren’t authorized by the FLSA.

On appeal, the Court of Appeals affirmed the award of the jury. In dismissing the employer’s argument, the Court found that the anti-retaliation provision of the FLSA allowed for broad relief, to include damages for emotional distress:

Although the provision does not explicitly allow damages for emotional injuries, a plain reading of the text of the provision indicates that it does not limit the type of damages that are available. As the Seventh Circuit pointed out in Travis v. Gary Community Health Center, Inc., 921 F.2d 108, 112 (7th Cir.1990), “the 1977 amendment does away with the old limitations without establishing new ones.” It allows any legal or equitable relief that is appropriate to further the purposes of § 215(a)(3), one of which is to ensure that employees feel free to report grievances under the FLSA. See Mitchell v. Robert De Mario Jewelry, Inc., 361 U.S. 288, 292, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960) (“Plainly, effective enforcement could … only be expected if employees felt free to approach officials with their grievances. This [is the end that] the prohibition of [§ 215(a)(3) ] against discharges and other discriminatory practices was designed to serve.”). The statutory scheme contemplates compensation in full for any retaliation employees suffer from reporting grievances, and there is no indication that it would not include compensation for demonstrable emotional injuries, as well as economic ones.

What is the takeaway from this? If you believe that your employer is not paying you the minimum wage, not giving you overtime wages when required by law, or committing other wage and hour violations, contact the attorneys at The Spitz Law Firm for a free and confidential initial consultation today. Even if you are still employed, we can discuss strategies for protecting your job, while still ensuring that you get the compensation you are entitled to. Likewise, if retaliation is a concern, we can help prepare you for it. The wage and hour lawyers at The Spitz Law Firm will provide you with the best options for your wage and hour dispute. If you even think that you may be entitled to wages that you are not being paid, call 866-797-6040.

If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Fair Labor Standards Act, contact the attorneys at The Spitz Law Firm today for a free and confidential initial consultation. Or maybe you are being misclassified as an independent contractor. The wage and hour lawyers at The Spitz Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.

Disclaimer:

The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.