Letter Asserting FLSA Rights Enough to Trigger Protection from Retaliation

June 25, 1999
Issue: A receptionist was hired to perform administrative and research duties. When she was hired, she was incorrectly informed that her position was considered exempt under the Fair Labor Standards Act (FLSA) and, therefore, she would not be eligible to receive overtime pay. During her employment she routinely worked in excess of 40 hours per week and was not paid for the overtime. After repeated clashes with her supervisor regarding her punctuality and job classification, the employee responded with a letter in which she asserted her rights under the FLSA. Arguing that a receptionist is not an exempt position, the employee said she would pursue overtime remedies under the FLSA if she were expected to continue working in that capacity. She also reminded her employer that it could not discharge or discriminate against her for asserting her rights. Nonetheless, the employer subsequently terminated her employment, giving her a severance payment that included an amount equivalent to any overtime pay she might have been owed under the FLSA. The employee filed suit against her employer under the overtime and anti-retaliation provisions of the FLSA. Was the employee’s internal letter to the employer warning of possible FLSA proceedings sufficient to protect her under the Act’s anti-termination clause?

Answer: Yes. The employee’s letter was an assertion of her rights under the Act and was delivered to the employer’s office manager.

The employer claimed that only a formal complaint filed with a court or agency is protected activity under the FLSA. Courts are split on this issue, and neither the Department of Labor nor the EEOC has expressed an official position. In this case, the First Circuit Court of Appeals found that the purpose of the FLSA would be thwarted if employers could terminate employees who had asserted their rights yet had not filed a formal complaint. The court concluded that the employee’s letter was a protected complaint and remanded the case for further proceedings.

Employers who violate the FLSA may be subject to wage hour injunctions, civil penalties, or criminal prosecution depending on the severity of the violation and the number of previous violations.

Injunctions: Injunctions are used by the Wage and Hour Division to restrain future violations of the FLSA and to keep goods which were produced in violation of the FLSA out of interstate commerce.

Civil penalties: Employers who repeatedly or willfully violate the minimum wage or overtime provisions of the FLSA may be subject to civil penalties of up to $1,000 per violation. Violations are "repeated" if an employer has previously received notice from the Wage and Hour Division for violations, or if the employer was found by a court to have violated the provision. Violations are "willful" if the employer knew that its conduct was prohibited by the FLSA or showed reckless disregard for the law’s requirements. Conduct is in reckless disregard if the employer should have inquired further into whether its conduct was in compliance with the FLSA and it failed to make adequate inquiry.

Cite: Valerio v. Putnam Associates Inc., CA-1, Dkt. No. 98-1399, April 9, 1999.

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The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.