Did you know you can get sued for emotional distress under the FLSA?

Employers can be sued for emotional distress caused by retaliation under the FLSA

We probably all know that, as an employer, you can get sued for back wages, unpaid overtime, and misclassification under the Fair Labor Standards Act, but did you know those suits can also claim emotional distress? Let me explain.

The situation

The 5th Circuit Court of Appeals heard a case where an employee and his wife sued his employer for back wages and retaliation. The case in district court involved a man who was a maintenance man for the apartment complex he lived in. His wages included a reduction in his rent plus cash. He filed suit for non-payment of overtime. Within days the company sent him a notice to vacate his apartment for nonpayment of rent. He and his wife left the apartment and she joined the lawsuit. The district court found for the employee and awarded him $ $1,426.50 in liquidated damages and $76,732.88 in attorney’s fees. Apparently he and his attorneys did not agree with this award (after all, the court had reduced the attorney’s fee by 25%) so they appealed. They argued to the 5th Circuit that the jury should have been instructed about the emotional distress caused by the eviction.

The law allows

According to Mark McGraw, writing for HR Executive Online, “The court of appeals for the Fifth Circuit concluded that the FLSA allows only employees to bring suit, but that an employee may recover for emotional injury resulting from retaliation.” Thus the wife could not collect, but the ex-employee could sue for emotional distress due to the retaliation of the eviction. The court did say that emotional distress damages could not be recovered in a “normal” FLSA case involving unpaid overtime or minimum-wage violations, but when you through in retaliation that changes the game. Apparently Congress amended the FLSA in 1977 to provide for a private cause of action to enforce the FLSA’s anti-retaliation provisions.

What does this mean for employers?

This court case means that the cost of settling FLSA claims could go up. Unlike the payment of back wages, there is no cap on the claims made for emotional distress. These claims are not wide spread, but now three Circuit courts, have allowed that these claims are possible.

How do you prevent these claims?

The simplest prevention to claims of emotional distress is DON’T RETALIATE! Retaliation by itself is illegal and now it opens the door for additional claims of emotional distress. If you are not sure whether your actions could be considered retaliation then read this post What retaliation in the workplace may look like. If what you are going to do is on this list, stop! It will make your case cleaner and cheaper.
Of course the simplest solution is don’t violate the FLSA. This prevents getting sued in the first place.

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