It is unlawful for an employer “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 [FLSA], or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” 29 U.S.C.S. § 215(a).
The Fair Labor Standards Act is not included in either Title VII or in the Fair Employment and Housing Act. Nevertheless, it is a statutory basis for bringing a claim of retaliation, and it works much the same way. An employer is prohibited from discharging or otherwise discriminating against employees who have participated in activities to which they were entitled to participate.
Prohibited retaliatory practices include not only termination but also constructive discharge. Constructive discharge occurs if a “reasonable person in a similar situation would have felt that he[/she] was forced to quit because of intolerable and discriminatory working condition. Ford v. Alfaro (9th Cir. 1986) 785 F.2d 835, 841.
Example: An employee has asthma, a disability, and struggles with his breathing in a particular warehouse. The employee requests a reasonable accommodation, namely to be moved to another warehouse. The employer does not want to accommodate the needs of this employee, and as a result the employer terminates the worker for having transferred. This would constitute FLSA Retaliation.
Another example: An employee comes to her employer and complains to them about sexual harassment from one of her coworkers. The employer, perhaps wanting to protect the harassing coworker and avoid a sexual harassment lawsuit, chooses to fire the female employee who complained of the harassment instead of taking care of the problem. By terminating the female employee who complained, the employer retaliated unlawfully against her for her act of taking a measure to oppose the harassment of the coworker. The employer would thus be liable under the Fair Labor Standards Act for retaliation.Contact Us