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Retaliation Under the FLSA is Alive and Well

Think an EEOC complaint of discrimination is the only time you’re in danger of a retaliation complaint? Well think again. Recently a court ruled that even an informal overtime complaint can be basis of FLSA retaliation claim. Listen to this. 

A worker for the Muskogee County Sheriff’s Department was instructed by his boss to take his company car in for repairs on his day off. When the employee recorded the 2 ½ hours overtime on his time card his boss refused to pay.

When the employee approached is his boss to find out why his overtime had been denied things got heated. During the argument, the employee said he could “take the denial of overtime to the labor board” (we presume this is the Department of Labor.) More heated words were exchanged and the employee was terminated. The company paid the employee for his overtime on his final check. End of story…not so fast.

The employee sued his employer for retaliation under the Fair Labor Standards Act. Although the company argued that they did pay the overtime and that the employee hadn’t filed a formal complaint until after he was fired for insubordination, the court said “too bad” the case stands and has bound it over for jury trial.

Bottomline: The FLSA contains an anti-retaliation provision that protects employees who take protected action under the Act. To bring a retaliation claim, the employee does not have to show that the employer’s conduct was actually illegal under the FLSA and the comment about going to the “labor board” (presumably, the U.S. Department of Labor (DOL)), even an “unofficial assertion of rights through complaints at work”, could count as protected activity under the FLSA. While firing an employee for having a bad attitude or being insubordinate may be legal, an employer that makes a termination decision minutes after an employee makes a complaint about his rights will likely end up explaining that termination decision to a court or jury.