My partner, Michael Russell, posted last week on the Penn State debacle and the question of why employees don’t always report illegal conduct. I agree with him that the answer is often that people are scared of losing their job and finding themselves in the unemployment line, or more likely fighting for unemployment benefits. To be honest, who can blame them. In this economy and with the need to provide for their families, employees are often put in the no win situation of reporting what they know is wrong versus keeping quiet and protecting themselves.
This same issue often arises in my wage and hour practice where employees are the subject of illegal wage and hour practices that are depriving them of wages guaranteed by the Fair Labor Standards Act (“FLSA”), whether minimum wage or overtime. While a majority of my clients no longer work for the offending employer when they come to me, I inevitably have some that are still employed and find themselves unable to continue to tolerate the illegal activiity, such as not being paid for overtime, being worked “off the clock,” or being misclassefied, as just a couple of examples. These individuals are almost always fearful of what their employer might do if they bring a federal lawsuit to correct the illegal payment practice. They often ask, “do you think I will get fired if I file this lawsuit?”
In response, I tell them I don’t know and can’t know how a particular employer will respond to a lawsuit. Some employers have highly competent counsel, who certainly advise against any sort of retaliatory conduct. In these cases, the filing of the lawsuit may work to protect the employee’s employment status. On the other hand, some employers will retaliate by trumping up bogus grounds and disregrding the advice of their attorneys.
What I do know, however, is that Congress realized that this would be an issue when it enacted the FLSA. The FLSA contains an anti-retaliation provision, 29 U.S.C. § 215(a)(3), which makes it unlawful for any person . . . 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 [the FLSA] or has testified or is about to testify in any such proceedings, or has served or is about to serve on an industry committee.
Because of this anti-retaliation provision, I am able to tell potential clients that any such retaliation is illegal and will certainly be the subject of a motion to amend complaint to add a retaliation claim. While this doesn’t protect against the unemployment line while litigation proceeds, it does give my clients some peace of mind that there is a remedy available to them for any retaliatory conduct. Each client then has to make the decision of whether this is enough peace of mind and/or the illegal payment practice is severe enough in order to warrant the possibility of the unemployment line. Of course, this is a decision that they must each make on their own or as a family.