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What Damages Can I Get For Wage Violations And Retaliation Under FLSA?

Published By | Mar 11, 2022 | Employment Law, Retaliation, Wage: Minimum Wage, Wage: Overtime, Wage: Tipped Employees, Wrongful Termination |

Best Wage Theft Attorneys Answers: Are punitive damages available under the FLSA? What happens if you violate the FLSA? What are liquidated damages under FLSA? Who pays my attorneys’ fees if I sue my job for overtime violations?

Our wage theft attorneys recently addressed that employees are protected under the Fair Labor Standards Act (“FLSA“) after reporting any type of wage violation under the act (such as failure to pay minimum wage or overtime properly, tip pool violations, wage theft, misclassification, altering hours, etc; and that they could sue and hold liable “anyone” who engages in retaliation from the owner and every boss and manager down to part-time coworker, and even the supervisor’s boyfriend. (Best Law Read: Am I Protected After Reporting Wage Theft Under The FLSA?) Our attorneys also addressed the amount of damages for overtime and minimum wage violations under the FLSA. Today, we are going to address the damages available under the FLSA, first for wage and hour claims and then for retaliation claims.

Let’s start with the damages available for minimum wage and overtime violations first. For negligent violations by the employer, employees are entitled to the unpaid wages going back two years; and three years where the employer’s violations of the FLSA were intentional, knowing, or reckless. (Best Law Read: Who Is Responsible For Keeping My Hours At Work?) Additionally, employees are entitled to liquidated damages, which means an equal amount to what was owed. Now, this comes with a caveat as 29 U.S.C. § 260 now provides that “if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the [FLSA], the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed [the amount of unpaid minimum wage and/or overtime owed].” In Braswell v. City of El Dorado, 187 F.3d 954, 957 (8th Cir.1999), the United States Court of Appeals for the Ninth Circuit held that an award of liquidated damages “is mandatory unless the employer can show good faith and reasonable grounds for believing that it was not in violation of the FLSA.” This means that it will the judge’s decision about how much liquidated damages you will receive, if any. Employees are entitled to recover their attorneys’ fees and costs for wage and hour violations under the FLSA.

In addition to the remedy for wage and hour violations, the FLSA also protects employees who report such violations. Any employee who is “discharged or in any other manner discriminated against” because that employee reported a wage violation has a wide range of additional damages available. On this point, the United States Supreme Court best held: “For it needs no argument to show that fear of economic retaliation might often operate to induce aggrieved employees quietly to accept substandard conditions. … By the proscription of retaliatory acts … and its enforcement in equity …, Congress sought to foster a climate in which compliance with the substantive provisions of the Act would be enhanced.” Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292, 80 S. Ct. 332, 335, 4 L. Ed. 2d 323 (1960).

So what type of damages can you get for a wrongful termination or other retaliation in violation of the FLSA? First, any employee wrongfully fired in retaliation for asserting a wage theft claim will be entitled economic damages. Economic damages means to compensation for objectively verifiable monetary losses, such as past and future lost wages and benefits. This includes backpay (which is the amount of lost wages from the time of termination through judgement or resolution of the claim) as well as reinstatement or front pay were reinstatement is not feasible. Front pay is defined as payment for lost compensation occurring between the judgment and either reinstatement or the amount of time reasonable for the employee to find new employment. If the employee already found a lesser paying job after the wrongful termination, the employee will be entitled to payment of the wage differential. This is not a fully inclusive list as there may be other economic losses associated with retaliation that would be recoverable, such a demotion, wage cut, reduced schedule, removal of benefits, etc.

Next, the FLSA provides an employee victim of retaliation the opportunity to recover non-economic damages. Non-economic damages means compensation for non-measurable or subjective loss that do not involve money, including pain, suffering, emotional distress, inconvenience, loss of enjoyment of life, and loss of consortium (how it impacts the relationship with a spouse). In Pineda v. JTCH Apartments, L.L.C., 843 F.3d 1062, 1066 (5th Cir. 2016), the United States Court of Appeals for the Fifth Circuit held that “the FLSA’s broad authorization of ‘legal and equitable relief’ encompasses compensation for emotional injuries suffered by an employee on account of employer retaliation.” See also Lambert v. Ackerley, 180 F.3d 997, 1011 (9th Cir. 1999)(affirming $75,000 in emotional distress damages awarded to each employee for FLSA retaliation); Moore v. Freeman, 355 F.3d 558, 564 (6th Cir. 2004)(affirming $40,000 in emotional distress damages awarded to employee for FLSA retaliation); Travis v. Gary Cmty. Mental Health Ctr., Inc., 921 F.2d 108, 111 (7th Cir. 1990); (affirming $35,000 in emotional distress damages awarded to employee for FLSA retaliation). Our employment law lawyers have discuss how to prove emotional distress damages. (Best Law Read: What Kind Of Damages Can You Get For Wrongful Termination?).

Like the basic claims for wage violations, the FLSA also requires the payment of attorneys’ fees and costs to employees who prevail on retaliation claims. While this may seem redundant as you cannot double dip on attorneys’ fees and cost, this will come into play when an employer timely pays an employee for wrongfully withheld overtime or minimum wage pay (meaning that the employee no longer has a claim for wage theft), but then wrongfully fires the employee for demanding the owed wages. It may also come into play when someone other than the employee whose wages were stolen reports the FLSA violation and is fired – that person would only have an FLSA retaliation claim and not a wage claim. This insures that any proven violation of the FLSA entitles the employee to the attorneys’ fees and costs incurred for pursuing the action.

The last form of damages that may be awarded in an FLSA retaliation case is punitive damages. Punitive damages are damages awarded against the defendant in addition to actual damages when the defendant acted with recklessness, malice, or deceit; and are assessed to penalize the wrongdoer while making an example to others to avoid the same or similar conduct. Courts have been split as to whether punitive damages are available in retaliation cases under the FLSA. In Travis v. Gary Cmty. Mental Health Ctr., Inc., 921 F.2d 108, 111–12 (7th Cir. 1990), the United States Court of Appeals for the Seventh Circuit explained why it affirmed a $45,500 punitive damage award for retaliation where the employer fired a supervisor who testified in an employee’s FLSA case:

As enacted in 1938, the FLSA established as remedies the statutory wages and overtime compensation plus “an additional equal amount as liquidated damages” plus attorneys’ fees. 29 U.S.C. § 216(b). Compensatory and punitive damages were unavailable. Congress amended the remedial section by adding this language: “Any employer who violates the provisions of section 15(a)(3) of this Act [29 U.S.C. § 215(a)(3) ] shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 15(a)(3), including without limitation employment, reinstatement or promotion and the payment of wages lost and an additional equal amount as liquidated damages.” Pub.L. 95–151, 91 Stat. 1252 (1977). This amendment authorizes “legal” relief, a term commonly understood to include compensatory and punitive damages.

Because the original text prescribed as a remedy double the shortfall of wages, and the amendment says that damages include this “without limitation”, Congress has authorized other measures of relief. Which other forms? The answer has been left to the courts. We could not find any case interpreting this amendment. The legislative history is unhelpful. The language originated in the Senate; the committee report does not discuss it. The Conference Committee adopted the Senate’s proposal, remarking that the bill authorizes suits “for appropriate legal or equitable relief” without describing what relief might be “appropriate”. H.R.Conf.Rep. No. 95–497H.R.Conf.Rep. No. 95–497, 95th Cong., 1st Sess. 16 (1977).

Appropriate legal relief includes damages. Congress could limit these damages, but the 1977 amendment does away with the old limitations without establishing new ones. Compensation for emotional distress, and punitive damages, are appropriate for intentional torts such as retaliatory discharge.

See also, Moore v. Freeman, 355 F.3d 558, 564 (6th Cir. 2004)(accepting and applying the holding in Travis); Weckbacher v. Mem’l Health Sys. Marietta Mem’l Hosp., No. 2:16-CV-01187, 2019 WL 5725048, at *2 (S.D. Ohio Nov. 5, 2019)(“the Court will not preclude Plaintiffs from seeking punitive damages under § 216(b)”); Felder v. Charles H. Hill Contractors, Inc., 2013 WL 12033162, at *3 (W.D. Tenn. Oct. 24, 2013) (“[T]he court is persuaded by decisions in this and other district and circuit courts that punitive damages are available under 29 U.S.C. §§ 215(a)(3) and 216(b).”); Brown v. Creative Restaurants, Inc., 2013 11043343, at *5 (W.D. Tenn. Feb. 19, 2013) (“the Court adopts the reasoning of the Seventh Circuit in holding that a plaintiff under § 215(a)(3) may recover punitive damages under § 216(b)”); Lewey v. Vi-Jon, Inc., 2012 WL 1859031, at *7 (E.D. Mo. May 22, 2012) (“The court agrees with those courts that have found that the FLSA anti-retaliation provision remedy of ‘legal relief’ encompasses punitive damages.”); Wolfe v. Clear Title, LLC, 654 F. Supp. 2d 929, 936 (E.D. Ark. 2009) (“It is contrary to the legislative intent, as expressed in this broadly worded provision, to exclude punitive damages from the relief authorized by subsection 216(b).”); Travis v. Knappenberger, 2000 WL 1853084, at *14 (D. Or. Dec. 13, 2000) (“Because the statute provides that the legal and equitable relief available is ‘without limitation,’ it may include compensatory and punitive damages.”)

As you can see, there are a lot of intricacies to bringing wage theft and retaliation claims under the FLSA, especially if you want to maximize your damages as best possible. Wage and hour attorneys at Spitz, The Employee’s Law Firm work these claims every day and are ready to assist you if you have been denied minimum wage, not paid overtime at time and half for all hours worked, or wrongfully fired or retaliated against for reporting such wage and hour violations.

If you believe that the company that you are working for is not fully paying you all your rightfully earned wages and for all the hours that you worked as mandated under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws, call (or click he line for help) the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. Don’t try to go it alone when dealing with complicated FLSA claims. Call our Cleveland, Columbus, Cincinnati Detroit, Boardman, and Toledo attorneys right now.


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, “What is my FLSA case worth?”, “Does my job have to pay me lost wages if I’m fired for reporting overtime pay violations?”, “My boss refuses to pay time and a half for overtime. Can my job do that?” or “What do I do if I was fired today for complaining about not getting paid minimum wage”, 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.

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