By far, the most common type of class action lawsuits we cover on ClassAction.org are wage and hour cases. (This year, we’ve already added nearly 250 new lawsuits to our database, and it’s only the beginning of March.)
Illegal labor practices are pervasive in our society, especially within the restaurant industry, and it seems many employers are either content to ignore the requirements of the age-old Fair Labor Standards Act (FLSA) or are oblivious to them, especially when it comes to paying employees minimum and overtime wages.
One reason these abuses are still allowed to take place is employees’ fear of retaliation by their employers for speaking up about their rights. In fact, the plaintiffs in many of the cases we cover claim that they were fired for complaining about unpaid wages. It usually goes something like this:
Employer refuses to pay Employee overtime wages. Employee complains to Employer about lack of overtime pay. A day or two later, Employer fires Employee citing “poor performance” or perhaps providing no reason at all.
Now pay attention, employees. Firing someone for complaining about unpaid wages is illegal.
Even if your employer provides a pretextual reason for your termination – like a claim of “poor performance” despite your boss always praising you for your work – they could still get in trouble for firing you if the underlying reason was your attempt to fight for your rights.
Under federal law, asserting your right to fair wages is a “protected activity,” meaning employers aren’t allowed to punish you for it.
And, complaining about unpaid minimum and overtime pay is just one of many protected activities you can do without fear of retaliation. But there are several others that every employee should be aware of.
Protected Activities: Can I Be Fired For…?
Under federal law, employers aren’t allowed to fire you or otherwise retaliate against you for engaging in protected activities or being part of protective classes. This includes:
Complaining about unpaid wages or other potential FLSA abuses Speaking up about harassment Speaking up about discrimination Being pregnant Taking protected leave Having an illness or disability that can be accommodated to Reporting a work injury/filing a worker’s compensation claim Participating in a complaint or grievance process Whistleblowing Joining a union
What Are Some Examples of These?
- Asking your boss why you haven’t received overtime wages
- Resisting sexual advances
- Reporting a hostile work environment to your company’s human resources department
- Refusing to follow your boss’s orders if it would result in discrimination
- Talking to coworkers about salary information to assess possibly discriminatory wages
- Requesting a reasonable accommodation of a disability, religious practice, or medical condition (including mental health conditions such as depression, anxiety, ADHD)
- Taking approved leave to care for your sick child
- Filing a discrimination charge with the Equal Employment Opportunity Commission
- Answering questions related to a harassment investigation
- Filing a lawsuit against your employer over unpaid wages
- Reporting suspected illegal activity
Not only are employers prohibited from terminating you for engaging in a protected activity such as those listed above, they are also barred from any sort of retaliation whatsoever.
What Do You Mean By “Retaliation”?
Retaliation can be any adverse action taken in response to a protected activity. In other words, if an employer responds to a protected activity by doing something to discourage workers from complaining about or resisting against future labor abuses, that could be considered retaliation.
What Are Some Examples of Retaliation?
Termination Suspending an employee or otherwise subjecting him or her to disciplinary action Transferring an employee to a less desirable location or position Physically or verbally abusing an employee Increasing scrutiny of an employee’s work Giving an employee a lower performance evaluation than he or she deserves Refusing to promote a qualified employee Spreading false rumors Making an employee’s work more difficult
It’s important to mention, though, that you can still be disciplined or fired even if you have engaged in a protected activity. It becomes illegal retaliation only if the cause of the adverse action is the protected activity.
What Can I Do if I Suspect My Employer Is Retaliating Against Me?
You have several options if you believe your employer has retaliated against you. First of all, you can follow your employer’s internal reporting policy. This may involve speaking with your manager or the company’s human resources department. Many times, the issue can be handled internally, and it’s important to document the steps you’ve taken. If, however, your employer refuses to acknowledge or correct the alleged wrongdoing, you can seek outside help by:
Filing a complaint with the Wage and Hour Division of the U.S. Department of Labor if the underlying issue has to do with possible FLSA abuses, such as unpaid minimum or overtime wages; Filing a charge with the Equal Employment Opportunity Commission or a Fair Employment Practices Agency in your state if your underlying issue has to do with possible discrimination; Filing suit against your employer.
Generally, if you sue your employer over alleged retaliation, you will need to prove that you engaged in a protected activity, that you suffered an adverse action, and that the protected activity caused your employer to take the adverse action.
What Are Some Possible Remedies?
If you file a retaliation lawsuit against your employer under the Fair Labor Standards Act, for example, you could recover:
Employment, if you were wrongly denied employment Reinstatement, if you were wrongly terminated or moved from your position Promotion, if you were wrongly demoted or denied a promotion Lost wages (plus liquidated damages, which are equal to the amount of the lost wages) Front pay Reasonable attorney’s fees Pre-judgment interest Injunctive relief (meaning your employer is ordered to cease any retaliatory practices)
Where Can I Find More Information?
There are several government agencies that enforce laws pertaining to employees’ rights in the workplace. Check out their websites to find lists of laws designed to protect your rights, plus some helpful information about how to fight for them:
Aside from that, you can also reach out to a local attorney for a free consultation if you’re concerned that your rights are being violated.