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Retaliation Under the Fair Labor Standards Act

South Carolina employees often fail to report overtime violations because employees fear retaliation if they speak up. Even though the FLSA prohibits retaliation, practically speaking all that means is that an employee has grounds for a lawsuit after termination. Most employees would just rather have their job, which I certainly understand. But I think it’s helpful for South Carolina employees to know exactly what type of reporting or complaining about overtime violations will fall under the anti-retaliation provisions of the FLSA.

What Complaints are Protected from Retaliation?

Not all “complaints” are the same. Complaining to your co-worker about not getting paid overtime won’t provide cover from retaliation. However, internal complaints to members of management, such as complaints to HR or a supervisor, DO qualify for protection. Now, up until 2012, South Carolina employees could not count on protection from making solely internal complaints. Instead, they would have to file a formal complaint with the U.S. Department of Labor first. But in 2012, the federal court of appeals (for the area that includes South Carolina) decided that employees making only internal complaints ARE protected from retaliation.

So now, South Carolina employees can make internal complaints about overtime or minimum wage violations. And, if their employer retaliates, the employees would then have a legal claim for retaliatory discharge under the FLSA. The U.S. Supreme Court has also decided that oral complaints qualify for protection as well, although I always recommend putting complaints in writing as strong proof of the complaint later on. Employers often deny that the employee made any complaint at all, so having an email or letter in hand as evidence is a powerful refutation.

What Types of Retaliation do South Carolina Employees Often Face?

The most obvious type of retaliation is termination. The employee complained, and the employer immediately fired the employee.

I also often see the employer repeatedly writing up the employee who made the complaint. This type of retaliation is easier to prove when the employee has not been written up before (or, at least, not as often).

Employers may fail to promote an employee after the complaint, or put something in the employee’s file that prevents future promotion or advancement.

Increased scrutiny and nitpicking managers are often pretty common, too. The employer or its managers start to find fault with the employee who complaint, often leading to increased write-ups and sometimes termination.

What can  South Carolina Employees do if They Face Retaliation?

If the retaliation is less than termination, such as increased write-ups or failure to promote, you can document the retaliation in an email to HR asking them to investigate. Or, if that doesn’t work, you can contact the U.S. Department of Labor (DOL) to file a formal complaint. Understand, however, that the DOL isn’t likely to file a lawsuit on your behalf, although the DOL can investigate and try to resolve the matter for you.

If you’ve been fired, then a close proximity in time between your complaint about overtime violations and the time of your termination is a strong implication that the firing was retaliatory. You would then have grounds to file a lawsuit in state or federal court, and if successful, you would be entitled to re-employment, lost wages (sometimes doubled by the court in certain circumstances), and your attorney’s fees.

If you believe you’ve been retaliated against, you can contact a South Carolina overtime lawyer for a consultation to review the facts of your case and determine whether a lawsuit would be appropriate.

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Workplace Breast Pumping Rights under the FLSA

Oh, Fairest of all Labor Standards Acts! What delights and protections do you offer to nursing mother employees in South Carolina? Breast pumping rights at work? Well, let’s get to it and not milk the suspense any longer!

In this post, dear readers, you’ll learn how to better express yourself. Or, rather, you’ll learn when and where you can express yourself. And yes, those were just a few breast pumping puns at the beginning of this post, so we’re already off and running!

Who Said Obama Never Gave You Anything Nice?

A little known component to the Affordable Care Act, aka Obamacare, was that employers are now required to provide unpaid break time to their nursing mother employees so that the employees can breast pump throughout the work day as needed. Milk for their adorable little babies, such as this one, who is just probably some random example of a baby who may or may not be be related to me:

I mean, look at him! I SAID LOOK AT HIM! *sigh* Isn’t he just darling?

…..

Ahem. Anyway. Back on point: employers are also required to provide a private location for employees’ breast pumping, and, the law notes, bathrooms don’t count!

This component is actually an amendment to the federal Fair Labor Standards Act (FLSA) and is enforced by the U.S. Department of Labor. Oh, and also enforced by this handsome guy! (Enforcement comes through private litigation in federal and state court, outcome and results cannot be guaranteed, but give me a call and we’ll kick some of that, but by no means a guaranteed all of that, defendant booty.)

It’s lucky for me, too, that this breast pumping provision falls under the FLSA, since I can blog about it here on my famous True Or FLSA blog, and therefore, my “express yourself” joke, already a classic for the ages, fits right in without too many complaints.

Who is Covered by this Breast Pumping Provision?

Keep in mind, however, that these breaks apply only to non-exempt employees (i.e., employees who are NOT paid a salary and who would therefore be entitled to overtime pay). So if you get a salary and don’t get overtime pay, then you aren’t covered by this provision, so just try to keep your breast pumping quietly on that conference call while you work all dem overtime hours, thanks.

Notably, this provision doesn’t apply to companies with less than 50 employees IF the provision of breaks and a location for breast pumping would impose an undue hardship on the company. Whether the burden is an undue hardship is determined by the relative size and resources of the company. So your banana stand, while it may always have money in it, probably won’t be forced to build a standalone breast pumping room.

What Happens If My Employer Violates the FLSA?

He becomes president.

Seriously though, the FLSA prevents discrimination or retaliation on the basis of an employee making a complaint under the FLSA. If you are fired for exercising your rights under the FLSA or for complaining about an employer’s violation of the law, then you may have a legal claim for retaliation, which means you can sue in state or federal court and recoup your lost wages (sometimes doubled by the court) and attorneys’ fees. If you’ve experienced retaliation, give me a call, get it off your chest, and most importantly: don’t nurse a grudge; nurse your baby instead. 

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U.S. Supreme Court Issues New Ruling on FLSA Exemptions from Overtime

Earlier this week, the U.S. Supreme Court ruled that certain employees of a car dealership in California were exempt from overtime pay under the Fair Labor Standards Act (FLSA). Unless you’re an automobile service adviser for a car dealership, the specific factual outcome of the case is likely not important to you.Image result for pictures of car dealerships

However, more importantly, the Supreme Court decided that “exemptions” from overtime should NOT be looked at narrowly. Exemptions, under the FLSA, are the different categories of employees who don’t get overtime pay. For example, supervisors, office managers, and professionals typically do not get paid overtime, so long as the employer pays them a sufficient salary. They are “exempt” from overtime requirements. (I’ve blogged about these exemptions in more detail at my law firm blog page here.)

So now, the Supreme Court has determined that these exemptions should be viewed more broadly by the courts, which means in effect that the Court thinks the tie should go to the runner (i.e., the employer, NOT the employee); this also means, potentially, that for employees whose cases are on the fence, courts may be inclined to side with the business. I expect to see many more companies using this case as a further defense in misclassification cases in the future. However, the fact remains that the duties test–in other words, do the specific duties that the employee performed fall within the proposed exemption?–will still have to be proved by the employer.

Bottom line: South Carolina employers who deliberately or accidentally misclassify employees as exempt from overtime run the risk of an FLSA lawsuit, which can result in back pay awards, liquidated damages, and attorneys’ fees. If you think you should be getting paid overtime and you’re not, give me a call.