FLSA Retaliation – Why Go There?

Today’s burning question: I am a line battalion chief in a department that classifies all chief officers as white-collar exempt executives. As exempt executives we are not eligible for overtime. Our association obtained an opinion letter from a law firm that concluded line chiefs do not qualify as white-collar executives under either the traditional analysis nor under the 2004 First Responder Regulations. We shared the letter with the city administration along with a demand for a change in our classification to non-exempt. The fire chief is now threatening to rename our positions as battalion captains. Isn’t that retaliation?

Answer: It may well be retaliation. Let’s explore the law.

The Fair Labor Standards Act includes a strong anti-retaliation provision that prohibits an employer from “discharg[ing] or in any other manner discriminat[ing] against any employee because such employee has filed any complaint”. According to the Department of Labor, the term “complaint” includes internal complaints to an employer, such as the one your association made.

As I have mentioned here numerous times, employment attorneys LOVE retaliation claims. The reason is relatively simple: If an employee engages in a protected activity (eg. complaining about an FLSA violation), and the employer thereafter takes an adverse action against the employee, it is retaliation. So easy a caveman-attorney could win it!

Here’s the kicker: It does not matter whether the employee was right or wrong in the original complaint. In other words, an employee who complains about an FLSA violation, and who thereafter is retaliated against, can prevail on his retaliation claim – EVEN IF HE WAS WRONG IN HIS UNDERLYING FLSA CLAIM. That is right: even if the employee is dead wrong, he can prevail on his retaliation claim.

Retaliation requires an adverse action. While changing an employee’s title very well could be an adverse action depending on the circumstances, it is less clear that threatening to do so would be. A strong argument could be made that the fire chief’s efforts to intimidate employees through threats of retaliation could itself be an adverse action. Personally, I would not want to try to defend a chief who threatened to retaliate, especially before a US District Court judge.

The next issue to consider is damages. What damages would a battalion chief whose title is changed to battalion captain, be entitled to? Assuming the department made the battalion chiefs/captains whole for the overtime they were denied plus liquidated damages and attorneys fees, and agreed to properly pay overtime going forward, how would a court calculate damages for the retaliation?

The US 5th Circuit Court of Appeals held last year that retaliation claims can include pain, suffering, and emotional damages for the employee and where appropriate the employee’s family. Punitive damages are also a possibility. Often retaliation takes the form of termination, reassignment to a less desirable position, or demotion. In the case of a title change, things that would be relevant to the amount of damages would be the loss of stature associated with the change, the loss of opportunities that may be associated with the change, and similar considerations. Some examples would be a battalion chief who is forced to withdraw from:

• an executive fire officer program that requires chief officer status,
• a Chief Fire Officer designation process that requires chief officer status,
• membership in a fire chiefs association that requires chief officer status.

Lastly, there is the possibility that a court could order the department to change the title back to battalion chief as a remedy to the retaliation.