Many workers across the country are well aware that they are being denied overtime and other wage and hour rights. Or they have their suspicions but are afraid to ask questions for fear of facing retaliation. Although not common, it is true that employers occasionally do retaliate against employees who file legal claims regarding overtime. This practice is illegal and the employer can be held liable for doing so. In this article, we will review the laws surrounding retaliation against employees who report overtime claims against their employers and what your legal options are if you are in such a circumstance.
Knowing Your Right to Overtime
Before you can stand up for your right to overtime pay, it’s imperative to understand how the law works. If you work more than 40 hours in a given week, you are likely entitled to overtime pay. There are some exceptions, but they are narrow in scope and most workers will not qualify for them (meaning, your employer most likely has to pay you overtime for each hour above 40 worked in a week).
Overtime is also called “time and a half” because the employee must be paid 1.5 times his or her regular hourly rate when working overtime. Unfortunately, not all workers are aware of their right to overtime, which allows employers to steal millions from workers every year. Employers have been known to use a number of different schemes to deny workers their right to overtime pay, including:
- Falsely claiming that they are not entitled to overtime pay due to their job title, pay structure, or responsibilities (most employees will generally qualify for overtime, and exemptions are strictly defined)
- Misclassifying an employee as an independent contractor
- Cheating employees by miscalculating their weekly hours or the rate of pay on which overtime is based
- Averaging hours across more than one week (every work week stands alone)
- Moving employees to different locations so they never work more than 40 hours at any one location
You should also be aware that many state and local governments have laws and ordinances that provide even more generous overtime provisions to workers. Wherever there is a difference between federal overtime rules and state or local ones, the law that is most generous to the employee will apply.
Can My Employer Fire Me For Taking Action?
If your employer is refusing to pay you overtime, you have the right to seek legal counsel to learn more about your rights. If it is determined that your employer has broken the law, you can file a lawsuit to seek damages. More specifically, you have the right to:
- Ask about your pay, hours of work, or other labor/employment rights
- Assert your worker rights
- File a legal complaint about your worker rights
- Cooperate with a Department of Labor investigation
Under federal law, an employer that fails to pay a non-exempt employee overtime may be liable for up to double the amount of unpaid back wages, along with court costs and attorney’s fees. State and local laws may provide additional remedies.
Understandably, many workers are afraid to stand up and file an overtime claim because they fear retaliation. This could come in the form of:
- Being fired, demoted, given fewer hours, or denied a promotion
Having your pay withheld or benefits denied - Being harassed at work either by management or other workers
- Being denied a job transfer or other reasonable request
- Being denied access to company facilities
- Being assigned unreasonably difficult tasks to try to make you quit
- Unfair disciplinary treatment (e.g. being disciplined while others are not, even though they engaged in the same conduct)
We understand the hesitation you may feel and the concern you have about being fired or otherwise negatively treated at work simply because you assert your overtime rights. But we want you to know that this treatment is illegal. The law makes it clear that employers cannot retaliate against employees for asserting their wage and hour rights, including seeking overtime pay. Under the FLSA, it is illegal 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 or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.
https://www.dol.gov/agencies/whd/fact-sheets/77a-flsa-prohibiting-retaliation
This is a broad prohibition against both written and oral complaints. Most courts have even ruled that internal complaints made to an employer – not just a lawsuit – are covered. Note that the use of the phrase “any person” is designed to cover any employee of the employer. This prohibition also applies even if there is no current employment relationship between the parties. As an example, the law protects an employee from retaliation by a former employer.
Bear in mind that there may be even stronger rules against retaliation under the laws of your state or local government. You can learn more about the overtime laws in each state by reviewing our list of State Overtime laws.
Possible Damages in a Retaliation Case
Every retaliation case is different, and the available damages will vary based on the unique facts of each one. In general, employees who face retaliation for asserting their legal rights can seek:
- Payment for their lost wages
- Liquidated damages in an amount equal to their lost wages
- Reinstatement, if fired
- Court costs and attorney’s fees
- In some cases, emotional distress and punitive damages (the latter of which are designed to punish the employer for its conduct)
Don’t Let Your Employer Take Away Your Right To Overtime
Have you been fired or subjected to other unfair treatment because you’ve demanded the overtime pay you earned? Is your employer threatening you with retaliation for asking questions about your rights? It’s time to fight back. Connect with The Lore Law Firm today by completing our free and confidential online client intake form.
