According to Florida state law, an employer is prohibited from any form of discrimination based on:
The current civil rights law has been in place in America since 1990. It guarantees that all persons will have equal rights and opportunities as everyone else. Basic accommodations are required for situations involving public transportation, telecommunications, government services, and employment.
In 2009 the Americans with Disabilities Act Amendments Act became effective and expanded on the specific definition of disability, which covers physical and mental impairments that limit your major life activities. Examples of such impairments can include AIDS, cancer, depression, heart disease, alcoholism, and diabetes.
Workers are also protected against retaliation after filing a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) or the Florida Commission on Human Relations (FCHR). In addition, employers are prohibited against retaliating against employees that participate in a workplace discrimination investigation or legal proceeding.
The Fair Labor Standards Act (FLSA) protects employees’ rights to minimum wage and overtime pay. The law also prohibits an employer from firing or discriminating against an employee who complains about not being paid per the law. Our wage and hour retaliation lawyers will explain what you have to prove to establish a claim of FLSA retaliation. We will also discuss common defenses your employer may raise and offer strategies you can use to overcome these defenses.
To establish a claim of retaliation under the FLSA, you must prove three elements:
(1) You engaged in a protected activity under the FLSA;
(2) You subsequently were subjected to an adverse employment action by the employer; and
(3) A causal connection exists between your protected activity and the adverse action.
Employer retaliation can take many forms, impacting many different terms and conditions of employment, including:
Most times, an employer will attack an employee’s wage, and hour retaliation claim by saying that the employee has not proved one of the required three elements. For example, your employer may attempt to have your claim dismissed (i.e., thrown out) by relying on one or more of these common defenses:
As mentioned above, it is essential to your FLSA retaliation claim that you engage in a protected activity. Protected activity includes making a complaint (orally or in writing) that puts your employer on notice that you are asserting your rights under the Fair Labor Standards Act.
One way your employer may attack your claim is by denying (falsely) that you made a complaint. The law does not require that a complaint is in writing. Written complaints are no more of a protected activity than oral complaints. Keep in mind, if an employer is not paying proper overtime wages, don’t assume that the same employer will be honest about a verbal complaint. The simplest way to overcome this potential defense is to put your complaint in writing (emails are almost always the best way). Sign and date your complaint and be sure to keep a copy for your records, in case the one you submitted to your employer is “lost.”
Even if your employer does admit that a complaint was made, your claim may still be dismissed if they can prove that your complaint was too vague. Remember, there are two parts to writing a sufficient complaint to assert your rights under the FLSA. One, you have to prove that a complaint was made, and two, that your complaint was specific enough to place your employer on notice. Complaints of general discontent with your employer will not be sufficient to be considered a protected activity. For example, a federal court in Florida decided that an employee’s complaints about “the manner in which I was paid,” “the manner in which I was compensated,” and being “improperly paid” were not specific enough to place the employer on notice of alleged FLSA violations.
To avoid this issue, you do not need to mention the FLSA in your complaint specifically, but your complaint needs to address violations that are prohibited by the FLSA. It is imperative your complaint state with specificity the grievances you have with your employer that are covered by FLSA. For example, “not being paid minimum wage” or “overtime compensation.” Putting your complaint in writing also will help you overcome this common employer defense. Your employer could very easily state that an oral complaint was made but was too vague to be considered a protected activity. If you have the complaint in writing for the trier of fact (judge or jury) to see, your employer will not be able to prevail on this issue.
It is common for an employer to attack an employee’s claim because there is no connection between the complaint (i.e., the protected activity) and the adverse action. The surest way for an employee to prove a causal connection is to show that the adverse action occurred close in time (in “temporal proximity”) to the date of the complaint. Temporal proximity can be established by showing that the complaint and the adverse action occurred within days or a few weeks of each other.
As an employee, you have no control over when you will suffer an adverse action at the hands of your employer after engaging in a protected activity. Often, an employer will intentionally wait weeks or months to terminate the complaining employee, in an attempt to prevent the employee from proving that there was a causal connection. However, you may be able to overcome this defense by keeping a written journal or timeline of retaliatory events that occur after your complaint is made. Even if you cannot show that you were fired right after you complained, you may be able to prove your case through circumstantial evidence.
If the employee/plaintiff successfully proves these three elements, it is still the employee/plaintiff’s burden to prove that retaliation motivated the employer’s decision ultimately. We do that by proving that the employer’s “legitimate, non-retaliatory reason(s)” are a mere pretext for retaliation.
The Tampa retaliation lawyers at Florin Gray Bouzas Owens, LLC are dedicated to protecting Florida’s workers from retaliation in the workplace. If you believe that your employer retaliated against you, please contact our Tampa retaliation attorneys for a free consultation or call us at (727) 254-5255.
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