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Am I Protected After Reporting Wage Theft Under The FLSA?

Published By | Mar 14, 2022 | Employment Law, Retaliation, Wage: Minimum Wage, Wage: Overtime, Wage: Tipped Employees, Wrongful Termination |

Best Wage And Hour Attorneys Answers: How do I report wage theft? Can I be fired for filing a wage claim? What protections do I have for reporting wage violations under the FLSA? How do I report a company for not paying me? Who is liable for retaliation against me for reporting overtime violations on my job?

As regular readers of our employment law know best, the Fair Labor Standards Act (“FLSA”) is a federal law requires employers to pay minimum wage and overtime at time and half (for non-exempt employees). (Best Law Read: Who Qualifies For Overtime Pay?; Wage & Hour: Employers Stealing Time Before Work). Critically, the FLSA also has very clear anti-retaliation provisions that prevent employers from taking any adverse actions against employees who request owed minimum wage or overtime pay, report violations, or participate in investigations related to FLSA violations. Our wage theft lawyers briefly touched about this in a recent blog where the employer paid the last paycheck in greased pennies. (Best Law Read: Can My Job Withhold My Last Paycheck?) While it is clear that an employer cannot fire an employee for reporting wage theft, minimum wage violations, the failure to properly pay overtime, or tip pool violations (that’s a wrongful termination), it important to get into a little more detail. The FLSA’s anti-retaliation provision, found at 29 U.S.C. § 215(a), provides:

It shall be unlawful for any person … (3) 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 chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.

First, you may have caught that this prohibition applies to “any person,” which courts have interpreted this broad language as including any business entity, managers, owners, non-managerial workers, and even non-employees. Thus, literally “any person” or company will be held individually liable for retaliating against an employee who has engaged in protected activity under the FLSA. Indeed, in In Arias v. Raimondo, 860 F.3d 1185 (9th Cir. 2017), the United States Court of Appeals for the Ninth Circuit held that even the employer’s outside attorney responsible for the retaliation could be directly sued and held liable for his conduct. Specifically, the attorney scheduled the employee’s deposition and then reported to ICE where and when it could find the employee.

In Kasten v. Saint-Gobain Performance Plastics Corp., 563 US 1, 131 S. Ct. 1325, 179 L. Ed. 2d 379 (2011), the United States Supreme Court focused on the “any complaint” language to hold that an employee gains protection under the FLSA’s anti-retaliation provisions regardless of whether the complaint was made in writing or orally. The Supreme Court left open the question of whether the protections only applied to complaints made to the Wage and Hour Division of the Department of Labor (“DOL“) and other government agencies, or if internal complaints with the company would also trigger the FLSA protections.

However, the vast majority of United States Circuit Courts of Appeals have granted the FLSA anti-retaliation protections to employees who have complained internally about overtime and minimum wage violations. For example, in Greathouse v. JHS Sec. Inc., 784 F.3d 105, 113–14 (2d Cir. 2015), where the owner responded to an internal wage violation complaint by pulling a gun on the employee and stating that, “I’ll pay you when I feel like it,” the United States Court of Appeals for the Second Circuit held this to be unlawful retaliation under the FLSA, and held internal complaints qualify for protection:

We have repeatedly affirmed that “the remedial nature of the FLSA warrants an expansive interpretation of its provisions so that they will have the widest possible impact in the national economy.” Irizarry v. Catsimatidis, 722 F.3d 99, 110 (2d Cir.2013) (internal quotation marks and alterations omitted); Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir.1984) (same); see also Zheng v. Liberty Apparel Co., 355 F.3d 61, 66 (2d Cir.2003) (recognizing the “remedial purpose” of FLSA). FLSA’s remedial goals counsel in favor of construing the phrase “filed any complaint” in section 215(a)(3) broadly, to include intra-company complaints to employers as well as complaints to government agencies. See, e.g., Valerio, 173 F.3d at 43 (concluding that the “remedial and humanitarian purposes of [FLSA] … would hardly be furthered by a narrow reading of § 215(a)(3)” (internal quotation marks and citations omitted)).

See also, Minor v. Bostwick Labs., Inc., 669 F.3d 428, 432 (4th Cir.2012) (“remedial purpose of the statute requires that it protect from retaliation employees who file intracompany complaints”); Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 626 (5th Cir.2008) (adopting “majority rule” that internal complaints are protected because “it better captures the anti-retaliation goals” of FLSA); Lambert v. Ackerley, 180 F.3d 997, 1005 (9th Cir.1999)(section 215(a)(3) protections “extend[ ] to employees who complain to their employer”); Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 43 (1st Cir.1999)( “animating spirit of the [FLSA] is best served by a construction of § 215(a)(3) under which the filing of a relevant complaint with the employer no less than with a court or agency may give rise to a retaliation claim”); EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989–90 (6th Cir.1992); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989) (unofficial complaints to an employer “constitute an assertion of rights protected under the statute”); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir.1984) (Section 215(a)(3) applies to “the unofficial assertion of rights through complaints at work”); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975) (complaint to company president “was an act protected from reprisals” under section 215(a)(3).

If you believe that you are not properly being paid overtime or minimum wage or that the company that you work for is stealing your wages or altering your hours, you have a right to report it and are protected under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws. But don’t go it alone. What option is best? Wage and hour attorneys at Spitz, The Employee’s Law Firm will provide you a free and confidential initial consultation to evaluate what course is your best. Wage theft attorneys at Spitz will guide you through this process. Call our Cleveland, Columbus, Cincinnati Detroit, Youngstown, and Toledo attorneys right now. Do not wait. The longer that you wait, the less that your claim may be worth.

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 all the hours that I worked”, “My paycheck is missing time that I worked” or “What do I do if I was fired today for complaining about not being paid overtime at time and a half”, 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 wage theft page or through this employment law 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.