Federal law (Title VII of the Civil Rights Act, 42 U.S.C. §1981, Age Discrimination in Employment Act, Americans with Disabilities Act) and State law (Florida Civil Rights Act) prohibit employers from retaliating against employees for complaining to their employer about discrimination based on:
- Equal Pay
- National Origin
What Else Are Workers Protected From?
Workers are also protected against retaliation after filing a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) or the Florida Commission on Human Relations (FCHR). In addition, employers are prohibited against retaliating against employees that participate in a workplace discrimination investigation or legal proceeding.
Additionally, Florida employees are protected from workplace retaliation for:
- Filing or attempting to file a valid workers’ compensation claim
- Blowing the whistle on their employer’s illegal activities
- Participating in a variety of governmental investigations
- Asserting their rights under the Family and Medical Leave Act (FMLA)
- Opposing, in good faith, child abuse and elder abuse
- Opposing a company’s illegal pay practices
- Jury Duty
- Testifying in Court
- Reporting financial, securities or shareholder fraud
- Providing information to certain governmental agencies
The Fair Labor Standards Act (FLSA) protects employees’ rights to minimum wage and overtime pay. The law also prohibits an employer from firing or in any way discriminating against an employee who complains about not being paid in accordance with the law. In this article, our wage and hour retaliation lawyers will explain what you have to prove to establish a claim of FLSA retaliation; discuss common defenses your employer may raise; and offer strategies you can use to overcome these defenses.
What You Have to Prove to Establish FLSA Retaliation
To establish a claim of retaliation under the FLSA, you must prove three elements:
(1) You engaged in a protected activity under the FLSA;
(2) You subsequently were subjected to an adverse employment action by the employer; and
(3) A causal connection exists between your protected activity and the adverse action.
Employer retaliation can take many forms, impacting many different terms and conditions of employment, including:
- Forced Resignation/Constructive Discharge
- Failure to Promote
- Loss of Pay
- Loss of Benefits
These are just some of many forms of retaliation in the workplace and courts will often consider an employer’s behavior to be retaliatory if the action against the employee would reasonably dissuade other workers from engaging in similar activity that is protected.
Common Employer Defenses and Strategies to Overcome Them
The most common way that an employer will attack an employee’s wage and hour retaliation claim is to say that the employee has not proved one of the required three elements. For example, your employer may attempt to have your claim dismissed (i.e. thrown out) by relying on one or more of these common defenses:
(1) The employee did not engage in a protected activity.
As mentioned above, it is essential to your FLSA retaliation claim that you engage in a protected activity. Protected activity includes making a complaint (orally or in writing) that puts your employer on notice that you are asserting your rights under the Fair Labor Standards Act.
One way your employer may attack your claim is by denying (falsely) that you made a complaint. The law does not require that a complaint be in writing. Written complaints are no more of a protected activity than oral complaints. However, if an employer is willing to violate the law by, for example, not paying overtime properly, do not count on that same employer to be honest about an oral complaint being made. The simplest way to overcome this potential defense is to put your complaint in writing (emails are almost always the best way). Sign and date your complaint, and be sure to keep a copy for your records, in case the one you submitted to your employer is “lost.”
(2) The employee engaged in protected activity, but the complaint was too vague.
Even if your employer is willing to admit that a complaint was made, your claim may still be dismissed if the employer can prove that the complaint was too vague. Remember, you not only have to prove that a complaint was made, but also that the complaint was specific enough to place your employer on notice that you are asserting your rights under the FLSA. General complaints of general discontent with your employer will not be sufficient to be considered a protected activity. For example, a federal court in Florida decided that an employee’s complaints about “the manner in which I was paid,” “the manner in which I was compensated,” and being “improperly paid” were not specific enough to place the employer on notice of alleged FLSA violations.
To avoid this issue, you do not need to specifically mention the FLSA in your complaint, but your complaint needs to address violations that are prohibited by the FLSA. It is imperative your complaint state with specificity the grievances you have with your employer that are covered by FLSA (e.g., not being paid minimum wage or overtime compensation). Putting your complaint in writing also will help you overcome this common employer defense. Your employer could very easily state that an oral complaint was made, but was too vague to be considered a protected activity. If you have the complaint in writing for the trier of fact (judge or jury) to see, your employer will not be able to prevail on this issue.
(3) There is no causal connection between the protected activity and the adverse action.
It is common for an employer to attack an employee’s claim on the grounds that there is no connection between the complaint (i.e., the protected activity) and the adverse action. The surest way for an employee to prove a causal connection is to show that the adverse action occurred close in time (in “temporal proximity”) to the date of the complaint. Temporal proximity can be established by showing that the complaint and the adverse action occurred within days or a few weeks of each other.
As an employee, you have no control over when you will suffer an adverse action at the hands of your employer after engaging in a protected activity. Often times, an employer will intentionally wait weeks or months to subject the complaining employee to an adverse employment action, in an attempt to prevent the employee from proving that there is a causal connection. However, you may be able to overcome this defense by keeping a written journal or timeline of retaliatory events that occur after your complaint is made. Even if you cannot show that the ultimate adverse action (e.g., your termination) occurred in close proximity to your complaint, you may be able to prove your case through circumstantial evidence.
Ultimately Proving Retaliation
If the employee/plaintiff is successful in proving the three elements above, it is still the employee/plaintiff’s burden to ultimately prove that retaliation motivated the employer’s decision. That is achieved by proving that the employer’s “legitimate, non-retaliatory reason(s)” are mere pretext for retaliation.
Our Tampa Retaliation Attorneys
Many workers are afraid to oppose activity by their employer that they reasonably and in good faith believe is illegal. For those that have the courage to stand up for what is right, the law provides protections. Those protections are vast, as are the types of behavior by an employer that are deemed to be retaliatory under the law. Do you believe that your employer retaliated against you due to voicing your opposition or reporting illegal behavior? If so, we’re here to help.
Florin Gray Bouzas Owens is dedicated to protecting Florida’s workers from retaliation in the workplace. If you believe that your employer retaliated against you, please contact our Florida retaliation attorneys for a free consultation or call us at 727-254-5255.