The Fair Labor Standards Act (“FLSA”) is the federal law that requires employers to pay non-exempt employees minimum wage and overtime at time and a half the regular rate. Today, our wage and hour lawyers are going to focus the antiretaliation provision of the FLSA and will use the recent United States Court of Appeals for the Second Circuit case of Wilson v. New York & Presbyterian Hosp., No. 21-1971-CV, 2022 WL 17587564, at *1 (2d Cir. Dec. 13, 2022) to discuss this point. In this case, Michael Wilson sued his former employer, New York and Presbyterian Hospital (NYP) for retaliating against him after he reported a FLSA violation. Specifically, Wilson complained internally that he was misclassified as an exempt employee and denied overtime pay at time and half his regular rate. After the complaint was made, the employer reclassified Wilson as non-exempt and paid him for previously earned overtime pay. However, Wilson claimed that following his overtime pay complaint, he was harassed, denied overtime opportunities, and then wrongfully terminated.
How does the FLSA protect against employees who complain from retaliation?
Section 15(a)(3) of the FLSA provides that it is a violation for “any person” 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.”
What complaints are protected?
The FLSA protects employees regarding any complaints regarding overtime or minimum pay violations, regardless of whether the employee is correct about the violation. Complaints made to the Department of Labor (“DOL”) are protected, and almost all courts have held that an employee’s internal complaints within the company will also be protected under the FLSA antiretaliation provisions.
Does my wage complaint have to be in writing for me to be protected?
The FLSA will provide protection from retaliation regardless of if the employee makes overtime or minimum wage complaint in writing or verbally. However, it is always a better practice to document the complaints by submitting them in writing in a trackable fashion, such as by email with a read receipt or with fax confirmation.
How do you prove retaliation for reporting wage violations under the FLSA?
Courts use a burden-shifting analysis to evaluate a claim of retaliation under the FLSA. To establish the initial case of retaliation under the FLSA, an employee must present sufficient evidence that (1) the employee engaged in a protected activity, such as reporting or making a claim for failure to properly pay minimum wage or overtime pay; (2) that the employer knew of that protected activity taken by the employee; (3) “any person” took an adverse employment action against that employee; and (4) a causal connection exists between the adverse action and the protected activity.
Do I have a retaliation claim if my managers are harassing me after I complained about not getting overtime pay?
A retaliation claim under the FLSA can be based on subsequent harassment by managers, supervisors or other bosses. In order for the harassment to support a retaliation claim, the conduct must be sufficiently “harmful … that it could well dissuade a reasonable worker from” engaging in protected activity. Shultz v. Congregation Shearith Israel of City of New York, 867 F.3d 298, 309 (2d Cir. 2017). However, to satisfy the adverse action element in an FLSA retaliation claim, the conduct must be more than “petty slights or minor annoyances that often take place at work.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
In Wilson, the United States Court of Appeals for the Second Circuit rejected his hostile work environment retaliation claim:
Wilson’s argument that harassment by Aldea and Pine constituted adverse employment action fails on the merits. The incidents Wilson recounts, in which Aldea and Pine allegedly shouted at, criticized, or ignored him, fall into the category of “petty slights, minor annoyances, and simple lack of good manners” that White identified as unactionable. 548 U.S. at 68; see also Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 570 (2d Cir. 2011) (“[C]riticism of an employee … is not an adverse employment action.” (internal quotation marks omitted)); Ziyan Shi v. N.Y. Dep’t of State, Div. of Licensing Servs., 393 F. Supp. 3d 329, 338–39 (S.D.N.Y. 2019) (yelling and screaming not adverse employment action).
Id. at *2.
What should I do if I was fired after complaining about pay issues?
Termination of employment plainly qualifies and is the most common adverse action to support a retaliation issue. However, while firing is clearly an adverse action, the employee must still show a causal connection between the complaint and the termination. Absent direct evidence, such as manager or supervisor saying that was the reason for the firing, courts often rely on the closeness in time between the complaint and the termination. Courts refer to this as temporal proximity.
Wilson lost his retaliation wrongful termination claim on this issue. The United States Court of Appeals for the Second Circuit held:
This court has not defined “the outer limits beyond which a temporal relationship” ceases to imply causation. Gorman-Bakos v. Cornell Coop. Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir. 2001). But more than a few months is generally too long without some other evidence of retaliation. Compare Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85–86 (2d Cir. 1990) (three months too long to suggest a causal relationship between complaint and putative adverse action), with Grant v. Bethlehem Steel Corp., 622 F.2d 43, 45–46 (2d Cir. 1980) (eight-month gap between EEOC complaint and adverse action suggested causation where defendant failed to show any legitimate justification). Wilson was fired more than eight months after he raised his overtime status with NYP, long enough that he must offer something more to link the two.
Id. at *2. Moreover, the Court held that it was much more likely that Wilson was fired because he told his supervisor that she was always angry because she was “always on her period,” which occurred five days before he was fired.
Can my employer refuse to give me overtime hours after I complain about being misclassified as exempt?
Certainly, reductions in pay or benefits will qualify as an adverse action sufficient to support a retaliation claim under the FLSA. In Wilson, the benefit at issue was whether taking away overtime opportunities could support a retaliation claim. Even as an employee’s right lawyer, I would have thought that when an employer realizes that an employee should be paid time and half for overtime hours, it should be able to financially decide to direct that overtime work to exempt employees or hire more people to reduce the more expensive overtime payments.
The Second Circuit Court of Appeals, however, reversed the dismissal of this claim, holding:
Given Wilson’s testimony that the cutoff of overtime opportunities began right after he questioned his FLSA classification, as well as evidence that he worked substantial overtime hours pre-reclassification and none post-reclassification, we conclude that he has created a material issue of disputed fact as to whether NYP retaliated against him for engaging in protected conduct by denying him opportunities to work for overtime pay.
Id. at *3.
How do I figure out if I have an overtime pay violation?
Best Ohio Wage Theft Attorney Answer: Because the FLSA is a very complicated and complex federal law, you need to get help from a qualified wage and hour law firm. While most lawyers have never handled FLSA claims, the wage theft attorneys at Spitz, The Employee’s Law Firm deal with these issues every single day. Moreover, if you call Spitz, you will be given a free and confidential initial consultation. (Read: What is the Spitz No Fee Guarantee?) Do not sit on your potential wage or wrongful termination claims. Get help now.
The FLSA, retaliation, and wrongful firing 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 need to figure out your particular situation, your best option is to contact an experienced 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.