Wage and Overtime

What is FLSA Retaliation?

Oftentimes, employees dread addressing discrepancies in their wages or overtime pay with their employer due to the fear of retaliation. The Fair Labor Standards Act (the “FLSA”) makes it unlawful for employers to retaliate against or penalize employees who bring wage or overtime pay concerns to the attention of their employer. Additionally, the FLSA provides remedies for employees who are exposed to retaliation as a result of raising a wage-related concern. The FLSA’s retaliation provision is intentionally broad and far-reaching as to provide the highest level of protection to employees who raise “good faith complaints.” The FLSA’s retaliation provision located at 29 U.S.C. § 215(a)(3) states, “[I]t shall be unlawful 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 [the FLSA] or related to this chapter, or has testified or is about to testify in any such proceeding ….” Therefore, it is illegal for any employer to fire, demote, or in any other way discriminate against an employee for exercising their right under the FLSA.

What are the Elements of a FLSA Retaliation Claim?

In order to bring a retaliation claim under the FLSA, a plaintiff must meet three elements:

  • The employee must have engaged in statutory conduct under the FLSA or the employer erroneously believed that the employee engaged in such conduct;
  • The employee must have suffered some adverse employment action; and
  • A causal link must exist between the employee’s conduct and the adverse employment action.

See Brock v. Richardson, 812 F.2d 121, 123, n.1 (3rd Cir. 1987)

To satisfy the first element, an employee must have engaged in “statutory conduct.” Statutory conduct is loosely defined, as the FLSA retaliation provision is broad in nature to protect numerous types of conduct. Additionally, statutory conduct protected under the FLSA includes conduct not explicitly stated in the FLSA. The retaliation provision covers both formal and informal complaints. Therefore, statutory conduct under the FLSA includes activities such as filing a complaint in federal court or reporting a wage discrepancy to a supervisor or Human Resources Department. Further, the FLSA additionally protects complaints brought by one employee on behalf of another. Lastly, if an employee’s alleged FLSA violations are later proven invalid, the employee is still protected as long as the complaint was made in good faith.

To satisfy the second element, an employee must have suffered an adverse employment action. Pennsylvania courts have determined that an adverse employment action is “an action by an employer that is serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment.” Jones v. SEPTA, 796 F.3d 323, 326 (3d Cir. 2015) (quoting Storey v. Burns Int’l Sec. Serv., 390 F.3d 760, 764 (3d Cir. 2004)). Therefore, adverse employment actions not only include more serious acts such as termination and constructive discharge, but also protect an employee from less serious acts, such as forcing an employee to perform a different work assignment in bad faith. Less serious events that alter an employee’s conditions of employment, such as changing work assignments, are deemed unlawful under the FLSA if they are done following an employee’s assertion of their rights under the FLSA.

To satisfy the third element, a causal connection must exist between the employee’s conduct and the adverse employment action. As stated above, an adverse employment action, such as termination, must arise following an employee’s engagement in statutory conduct. The simplest way to establish a satisfactory casual link is by illuminating the brief time frame between the employee’s assertion of their statutory rights and the adverse employment action. For example, a causal connection can be made between an employee reporting unpaid overtime wages to their supervisor and being terminated without legitimate reason the following week.

Courts grant some leniency when analyzing the third prong, as it is rare an employer readily admits to the adverse employment action as a result of the employee’s engagement in statutory conduct. As a result, these claims are generally proven by circumstantial or indirect evidence. Further, there are two types of cases in which an employer commits an adverse employment action. The first type of case is pretextual, in which the employer alleges a nonretaliatory reason for the adverse employment action. The second type of case is mixed-motive, in which the employer has legitimate as well as non-legitimate reasons for the adverse employment action.

What Remedies are Available for a FLSA Retaliation Claim?

Under the FLSA, an employee may recover the wages they are owed, additional liquidated damages equal to the wages they are owed, and attorney fees and costs. Essentially, employees are entitled to double the amount they are owed to remedy the two separate occasions in which an employee was wronged. The first instance of wrongdoing is the FLSA violation itself (unpaid overtime, etc.)  while the second is the adverse employment action as a result of the employee’s engagement in statutory conduct. The FLSA provides additional broader remedies to plaintiffs who bring a successful FLSA retaliation claim, therefore FLSA retaliation cases often result in a higher award of damages than an FLSA case barring a retaliation claim.

As stated above, a plaintiff is entitled to their unpaid and lost wages as a result of the adverse employment action. Lost wages are generally calculated from the date of the adverse employment action to the date of judgment. Additionally, a plaintiff may recover compensatory and liquidated damages in an amount equivalent to the plaintiff’s actual damages. Further, compensatory damages may be larger than the monetary amount of lost wages. Lastly, some courts have held an employee may recover emotional distress damages as related to an unlawful termination, while others have held that punitive damages may be appropriate in FLSA retaliation cases. See Travis v. Gary Community Mental Health Center, 921 F.2d 108, 112 (7th Cir. 1991).


Retaliation frequently occurs in the workplace as a result of an employee’s engagement statutory conduct, such as reporting unpaid wages to a manager or employee of a supervisory role. Therefore, the FLSA retaliation provision intends to persuade employees to assert their rights under the FLSA in the event of wrongdoing by their employers. The FLSA retaliation provision protects employees who have brought concerns about wage discrepancies to their employer’s attention, as well as attempts to deter employers from engaging in unlawful actions.

Have you Suffered FLSA Retaliation?

If you or someone you care about is a victim of FLSA retaliation or have suffered unpaid wages, don’t hesitate to explore your options. J.P. Ward & Associates is experienced in the area of employment law and our attorneys are eager to assist. Contact us by filling out a contact form or calling our direct Employment Law line at (833)-GOT-FIRED.