Labor and Employment

Retaliation for Filing a Wage Claim

Updated by Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley
Your employer may not take negative action against you for complaining that you haven't been paid correctly under wage and hour laws.

The federal Fair Labor Standards Act (FLSA) sets certain wage and hour rules for all employees in the country, including the federal minimum wage, what counts as work time for which you must be paid, and when employees are owed overtime pay. Most employers in the United States have to comply with the FLSA.

Although some employees are exempt from the minimum wage and overtime provisions of the FLSA, which means they aren’t entitled to these protections, most employees are not exempt. This means your employer must follow the rules of the FLSA and may not retaliate against you for asserting your rights under the law. (To learn more about your rights, see our Wage and Hour FAQ.)

Filing a Wage Complaint

If you believe that your employer is not paying you correctly under the FLSA, you have several options. You can complain internally, using your company’s complaint process. If your employer is unaware of the problem, your internal complaint might provide the wake-up call necessary to get the money you are owed.

If you don’t want to file an internal complaint, or you aren’t happy with your employer’s response, you can file an administrative wage claim with the U.S. Department of Labor. Or, you can file a lawsuit based on FLSA violations in state or federal court. If you decide to take one of these more formal actions against your employer, you will likely want to consult with a lawyer.

If your employer has violated state wage laws, you can also file a wage claim with your state labor department or a lawsuit in state court. For example, the FLSA does not require your employer to pay for vacation or sick leave or provide meal breaks or fringe benefits. However, your state’s wage and hour laws may give these rights.

Protection From Retaliation

The FLSA protects employees from retaliation for asserting their rights. Retaliation is any negative action your employer takes against you for filing a wage claim or otherwise exercising your rights under the FLSA. This protection applies to formal and informal complaints, as well as testifying about wage violations in a legal proceeding or serving on an industry committee (a type of advisory board appointed by the Administrator of the Wage and Hour Division of the Department of Labor). Any action that has a negative impact on you or your job could be considered retaliation. These include changing your job title, firing or demoting you, reducing your responsibilities, or taking action that could prevent you from finding other employment.

Even if it turns out that you are mistaken about your employer violating the FLSA, you are still protected from retaliation. You are protected as long as you had a good faith belief that your employer violated the law.

Proving Retaliation

If you believe you have been retaliated against, you can file a wage claim or add a charge of retaliation to your existing wage claim. You may also file a lawsuit alleging retaliation, in state or federal court. You should definitely talk to a lawyer if you believe you are facing retaliation; a lawyer can help you figure out the best way to assert your rights and make your retaliation claim.

To prove retaliation, you must show that your employer took action against you because of your wage complaint. If your manager or employer admits to punishing you for complaining, you have direct evidence of retaliation. Usually, though, this type of evidence isn’t readily available. Instead, employees must prove their retaliation claims through indirect evidence showing a link between the complaint and the action taken against them. Timing is often a key part of this evidence: The less time that passes between your complaint and the negative job action, the more likely retaliation is at work. Other indirect evidence might include your employer’s pattern of retaliating against workers who file wage claims or your manager’s suddenly cold demeanor after you filed a claim.

Damages for Retaliation

If you win a retaliation claim under the FLSA, you will be entitled to money damages. How much you receive will depend on the facts of your case. However, you should be reimbursed for:

  • your lost wages (for example, if you were demoted or fired due to your complaint)
  • your out-of-pocket costs (such as the costs of looking for a new job)
  • attorneys’ fees and legal costs, and
  • liquidated damages in an amount equal to your lost wages.
If you have state law claims, you might be able to collect different types of damages. For example, you might be able to collect damages for emotional distress and punitive damages (which are intended to punish your employer).
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