Decisions made on impulse or driven by emotions often make bad situations worse. As an employer, dealing with your alleged Fair Labor Standards Act violation the wrong way can significantly expand the legal liability you may face. A minimum wage or unpaid overtime violation is one thing; a minimum wage or unpaid overtime violation plus a violation of the law against retaliation is unequivocally worse. Knowing what to do (and, often, what not to do) when faced with a FLSA claim is crucial. An experienced Atlanta wage and hour lawyer can help you mitigate your existing liability exposure, and avoid unnecessary additional forms of exposure, as well.
Some missteps are born of a fierce urge to tell “your side of the story.” While sometimes understandable, this can lead to serious trouble.
Take, for example, a recent FLSA retaliation action from New England. The case arose after the president of a Vermont excavation company fired one of his truck drivers following a dispute about overtime pay. The driver complained to the Wage and Hour Division. That agency’s investigation ended with a settlement calling for the employer to compensate the driver for back pay and unlawful discharge.
The U.S. Department of Labor, as is its routine, issued a press release announcing the settlement. A local TV station aired a report summarizing the settlement and the Department of Labor’s comments. That news report frustrated the employer’s secretary, who took to Facebook. The secretary’s post identified the employee (which neither the DOL nor the TV station had disclosed) and urged readers to Google the man’s name. The secretary “liked” several Facebook users’ posts linking to or commenting about the driver’s past run-ins with law enforcement, with the secretary replying to one with the comment “point made.”
On the surface, this may seem somewhat unprofessional or relatively insignificant. While it may be the former, it definitely is not the latter. Section 15(a)(3) expressly bars firing or discriminating “against any employee [who] filed any complaint or caused to be instituted any proceeding under” the FLSA.
The Department of Labor, having become aware of the employer’s actions on Facebook, launched a new claim against the excavation company… this time for retaliation.
Freedom of Speech
The First Amendment protects most forms of employer speech, but generally does not extend to speech “designed to punish or otherwise unlawfully influence employees.” This includes speech that would discourage a reasonable employee from filing a similar agency or court complaint.
When the secretary named the driver (which neither the DOL nor the TV station had done) and encouraged readers to “Google” him (and presumably come across the previous criminal allegations against him,) she engaged in a tactic whose effect was to disparage the driver, making her comment an adverse employment action that was sufficient to trigger the statutory prohibition against retaliation.
Truth of the Assertion
The employer contended that the secretary’s comments contained no untruths, but this did not help. As the court explained, “even a true report of unlawful conduct can be considered unlawful retaliation under the FLSA.” The crux of a statement’s qualification as retaliatory is the extent to which it might dissuade a reasonable employee from pursuing their rights. Truth or falsehood has no bearing on that analysis. (This, by the way, is part of the explanation for how employers who use threats of reporting to immigration authorities to manipulate workers can be liable for illegal retaliation. Even if the workers whom the employer threatened were undocumented and were subject to removal (a/k/a deportation,) a report (or threat of a report) to INS can constitute illegal retaliation as long as it had the effect of discouraging those workers from seeking to protect their rights.)
Skillful legal counsel can help you, as an employer, in many ways. Sometimes, that relates to taking a proactive step. Many times, though, having the right legal team helps in a different way, which is preventing you from making mistakes that can open you up to legal liability and ultimately prove very costly. The knowledgeable Atlanta wage and hour attorneys at the law firm of Parks, Chesin & Walbert are here to offer advice that is grounded in an in-depth understanding of the law and extensive relevant experience… and is designed to advance your business interests (and minimize potential liability) at every step along the way. Contact us through this website or at 404-873-8048 to schedule a consultation today.