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Are You Entitled To Liquidated Damages If You Prove Your Anti-Retaliation Claim Under the FLSA?

The Fair Labor Standards Act ("FLSA") requires employers to pay all covered non-exempt employees no less than the current federal minimum wage for all hours worked and overtime pay, at time and one half the regular rate, for all hours worked over 40 in a workweek. The FLSA's anti-retaliation provision makes it unlawful "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." 29 U.S.C. §215(a)(3).

Among the damages provided by the FLSA are liquidated damages. Liquidated damages are damages which are equal to the amount of any award of lost or unpaid wages. For instance, if an employee is owed $1,000.00 in overtime compensation pursuant to the FLSA then he or she would also be entitled to an additional amount of $1,000.00 in liquidated damages. For this reason, liquidated damages are often referred to as "double damages" or "double back pay."

29 U.S.C. §216(b) of the FLSA provides, in pertinent part, that "Any employer who violates the provisions of Section 206 or 207 of this title [minimum wage or overtime provisions] shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. On the other hand, any employer who violates the provisions of section 215(a)(3) of this title [retaliation provision] shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this title, including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages."

In minimum wage and overtime cases an award of liquidated damages is mandatory unless the employer can prove that there were reasonable grounds for believing that the act or omission was not a violation of the FLSA. However, until recently, it wasn't clear whether an award of liquidated damages is mandatory when an employer violated the anti-retaliation provision of the FLSA.

The United States Court of Appeals for the Eleventh Circuit resolved this issue in Moore, et al. v. Appliance Direct, Inc. and Sei Pak, 2013 U.S. App. LEXIS 3047, (11th Cir. Feb. 13, 2013). In Moore, a group of former employees sued their former employer for retaliating against them for filing a previous lawsuit alleging violations of the overtime provisions of the FLSA by refusing to hire them back as independent contractors. The former employees prevailed in their retaliation lawsuit and were awarded an economic damages award of $30,000.00 each. However, the district court refused to award the former employees liquidated damages and appealed the issue to the Eleventh Circuit Court of Appeals. The former employees argued that, since the former employer did not show that he acted in a reasonable good faith, the district court was required to award them liquidated damages.

To decide this issue the Eleventh Circuit looked to section 216(b) and found that the additional language in the anti-retaliation provision, namely "as may be appropriate to effectuate the purposes of [the anti-retaliation provision]," creates a separate, discretionary standard of damages for retaliation claims. As such, the Eleventh Circuit differentiated violations of the overtime and minimum wage provisions of the FLSA, where a court must award liquidated damages in the absence of proof by employer of a reasonable good faith exception, from violations of the anti-retaliation provision of the FLSA, where a court may award liquidated damages in its discretion if that would "be appropriate to effectuate the purposes of" the anti-retaliation section.

As a result of Moore, courts have been given leeway in determining the appropriate amount of damages an employee should be awarded if he or she proves a violation of the anti-retaliation provision of the FLSA. Such damages include, but are not limited to, liquidated damages, reinstatement, promotion and the payment of wages lost. 29 U.S.C. §216(b).

Contact our Central Florida FLSA Lawyer

If you work for an employer in Orlando, Tampa or anywhere within the Central Florida area and you have questions about overtime, minimum wage, or any other wage related issues call the our experienced Orlando employment attorney at J. Allen Law P.L. for more information. You can reach us at (407) 205-2330 or fill out the online form provided on this page and our FLSA violation attorney will contact you shortly. Your privacy is important to us and we will keep your information confidential.


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