An employer may not discriminate, retaliate, or otherwise take action against an employee because the employee has complained about the employer's failure to pay overtime. State and federal laws protect employees from retaliation for asserting their rights.
Overtime Protections
The federal Fair Labor Standards Act (FLSA) requires employers to pay employees overtime if they work more than 40 hours in a week. Not all employees are eligible for overtime: "Exempt" employees, who fall within an exception to the law, don't have the right to overtime. These employees include managers and executives, outside salespeople, and certain computer specialists. Unless an employee fits into an exception, however, the employee is entitled to overtime.
Many states also have overtime laws, and some provide greater protections for employees. For example, some states require employers to pay overtime to any employee who works more than eight hours in a day, regardless of how many hours the employee works in a week. And, some states have different exemptions, so that an employee might be entitled to overtime under state law even if the employee is exempt under the FLSA.
If an employer refuses to pay overtime an employee has earned, the employee has a couple of legal options. The employee may file a complaint with the federal Department of Labor or the state labor department, if the employee's state has an overtime law. Or, the employee can file a lawsuit.
For more information on overtime protections, see our Overtime articles.
Retaliation Is Prohibited
After an employee files an overtime lawsuit or a complaint with a government agency, the employer may try to take action against the employee. For example, an employer might fire or demote the employee, or subject the employee to discipline or other workplace mistreatment. All of these actions are illegal, if taken in retaliation for the employee's complaint.
Workplace rights can be enforced only if employees are free to come forward and report violations. If employers had the right to fire or discipline employees for making these complaints, the law wouldn't have any teeth. Because of this, the Supreme Court has taken a very strong stand in favor of employees in retaliation cases. For example, in a recent case involving an employee who complained that the company had placed its time clocks in a location that required employees to work unpaid time before they punched in, the Court found that employees are protected from retaliation whether they make their complaint in writing or orally.
What the Court didn't decide in that case, however, is whether the employee has to complain to a government agency or court to be protected, or whether it's sufficient to make an internal complaint to the employer. Because the Court didn't resolve this issue, an employee who complains only internally may not be protected from retaliation.
What to Do If You Are Facing Retaliation
If you believe you have been retaliated against for filing an overtime complaint, you should report it right away. If you are represented by a lawyer, tell your lawyer what's happening, including dates, times, and actions. Your lawyer can then decide whether to amend your complaint or lawsuit to include the retaliation claims. If you aren't represented by a lawyer, you probably should be. Retaliation often leads to the loss of a job, which could leave you in dire straits. And, an employer who engages in retaliation is playing hardball, trying to intimidate you into dropping your overtime claims. In this situation, it's a good idea to get an advocate for your position and your rights. A lawyer can represent you in agency proceeding or in a lawsuit. A lawyer can also help you negotiate a settlement with your employer, if that's an option.
