FLSA Retaliation: Rights After Reporting Unpaid Overtime

If you complain about unpaid overtime, your employer cannot legally punish you for raising the issue. The Fair Labor Standards Act protects employees who assert their rights under federal wage law, including workers who complain about unpaid wages.

Retaliation is not limited to getting fired. An employer may also cut your hours, change your schedule, discipline you, demote you, or take other adverse action because you complained. When that happens, you may have a separate FLSA retaliation claim in addition to your underlying wage claim.

What Is FLSA Retaliation?

Section 215(a)(3) of the Fair Labor Standards Act makes it unlawful for an employer to discharge or discriminate against an employee because the employee has filed an FLSA complaint, participated in a related proceeding, or testified or is about to testify in one.

The protection is not limited to lawsuits. Workers can be protected when they raise wage concerns with their employer or participate in an investigation or wage proceeding.

What Counts as Protected Activity?

Filing a Wage Complaint

A complaint to the Department of Labor’s Wage and Hour Division is protected activity. So is filing an FLSA lawsuit or, in many circumstances, filing a wage complaint with a state labor agency.

Complaining to Your Employer

You do not have to go to the government before FLSA protection applies. Internal complaints to a supervisor or HR can qualify when the employee is clearly asserting a wage right.

Making an Oral Complaint

Your complaint does not necessarily have to be in writing. In Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011), the Supreme Court held that oral complaints can qualify as protected activity.

The complaint still needs to be clear enough for a reasonable employer to understand that the worker is asserting a legal wage right. Telling a supervisor, for example, that the company is not paying required overtime is different from simply saying that a paycheck is disappointing.

Participating in a Wage Proceeding

Testifying in an FLSA proceeding is protected. The protection can also extend to workers who are about to testify or who fall within certain pending FLSA collective actions. Uronis v. Cabot Oil & Gas Corp., 49 F.4th 263 (3d Cir. 2022), addressed protection involving potential members of a pending collective action.

Cooperating With an Investigation

Workers who provide information to Department of Labor investigators or serve as witnesses may also be protected. Helping a co-worker pursue a wage claim can raise similar issues.

What Counts as FLSA Retaliation?

Getting fired is the clearest example, but it is not the only one. Retaliation can take many forms, including:

• Termination or firing
• Demotion
• Pay cuts
• Reduced hours
• Punitive schedule changes
• Unfavorable assignments or transfers
• Denial of promotions
• Pretextual discipline or write-ups
• Threats or intimidation
• Immigration-related threats
• Blacklisting or interference with future employment
• Constructive discharge
• Retaliatory references

How Do You Prove FLSA Retaliation?

Three issues usually drive an FLSA retaliation case: protected activity, adverse action, and causation.

First, the worker must have engaged in activity protected by the FLSA. Second, the employer must have taken some adverse action. Third, there must be a connection between the complaint or other protected activity and what the employer did afterward.

The employer may argue that it had a legitimate reason for the decision. Evidence that the explanation does not hold up can become important in showing that the stated reason was a pretext for retaliation.

Why Timing Matters

The timing of the employer’s actions can be important evidence. A termination shortly after an overtime complaint may support an inference of retaliation, particularly when the employer’s explanation does not match the employee’s prior record.

Other evidence can include:

• Different treatment of similarly situated employees.
• Changes in the employer’s explanation for the adverse action.
• A strong performance record before the complaint.
• Discipline for conduct the employer previously tolerated.

What Can You Recover?

If you prove FLSA retaliation, the remedies can extend beyond getting your job back. Depending on the circumstances, you may be able to recover:

• Reinstatement to your former position.
• Back pay for wages lost because of the retaliation.
• Front pay when returning to the job is not practical.
• Liquidated damages in applicable cases.
• Attorney’s fees and court costs.
• Other damages available under applicable federal or state law.

Some courts and state laws allow additional remedies, including emotional distress or punitive damages in certain circumstances. The potential recovery depends on the facts and the laws that apply to the case.

How Long Do You Have to File?

FLSA retaliation claims generally have a two-year limitations period. The period can extend to three years for willful violations.

State laws may provide different deadlines and additional causes of action. New York, California, New Jersey, and Illinois, for example, have their own wage retaliation protections.

State Law May Give You Additional Rights

The FLSA is only one source of protection. Many states have their own laws prohibiting retaliation for reporting wage violations.

For example, California protects certain employees who report violations of law under Labor Code § 1102.5. New York provides retaliation protections under NYLL § 215. Depending on where you work, you may be able to pursue both federal and state claims.

What to Do After Retaliation

Document the Complaint

Write down when you raised the wage issue, what you said, who received the complaint, and how the employer responded. Keep track of what happened afterward, including dates of discipline, schedule changes, reduced hours, or termination.

Keep Your Records

Save emails, text messages, pay records, schedules, performance reviews, disciplinary notices, and other relevant communications. Records from before the complaint can be useful if the employer later claims that your performance caused the adverse action.

Identify Witnesses

Make a note of co-workers who witnessed your complaint, heard statements from management, or saw changes in how you were treated.

Keep Working

Continue performing your job as well as you can. A strong employment record can make it harder for an employer to justify discipline based on performance after you complain.

Talk to an Employment Attorney

Retaliation cases can involve short deadlines and evidence that becomes harder to obtain over time. An employment attorney can review the underlying wage claim, the retaliation, the applicable deadlines, and the potential remedies.

Reporting Unpaid Overtime Should Not Cost You Your Job

The FLSA gives workers the right to raise wage concerns without being punished for doing so. If your employer fired you, cut your hours, changed your schedule, disciplined you, or otherwise treated you differently after you complained about unpaid overtime, you may have a retaliation claim.

You may also have a separate claim for the unpaid wages themselves. The two issues should be evaluated together.

Josephson Dunlap, Lawyers for the Workers®, represents employees nationwide in wage and hour matters, including FLSA retaliation cases. We offer confidential case evaluations at no cost.