Brian J. Graber, Ltd., represents employees retaliated against because of a wage dispute with their employer in violation of Illinois and federal law. Wage dispute retaliation claims arise when employers retaliate against employees who claim they were not paid in violation of Illinois or federal law. The Fair Labor Standards Act (FLSA), 29 U.S.C. §215(a)(3) and the Illinois Wage Payment and Collection Act, (IWPCA), 820 ILCS 115/14(c) each provide employees with statutory causes of action for retaliation and wrongful termination arising out of wage & hour disputes with their employers.
FLSA RETALIATION CLAIMS
FLSA, 29 U.S.C. §215(a)(3) makes it an unlawful employment practice 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 this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee. The FLSA’s anti-retaliation provisions shield employees from having to make an unreasonable choice between standing on their labor rights and saving their jobs.
FLSA, §215(a)(3) makes it unlawful for any “person” to discharge or otherwise retaliate against an employee who engages in any of the following protected activities:
- Files a lawsuit against his/her employer for unpaid minimum wages or unpaid overtime wages;
- Files an administrative claim with the U.S. Department of Labor’s Wage & Hour Division for violations of the FLSA’s minimum wage or overtime laws;
- Testifies in any proceeding filed in the courts or administrative proceedings before the U.S. Department of Labor’s Wage & Hour Division pertaining to violations of the FLSA’s minimum wage or overtime laws;
- Making a written or oral report complaint with his/her employer invoking his/her rights under the FLSA to minimum wage or overtime wages.
FLSA §215(a)(3)’s anti-retaliation provisions apply to “any person” which includes not only the employer but also management person making the decision to retaliate against the employee. The FLSA, 29 U.S.C. §203(a) defines “person” as an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons.
Oral complaints made to an employer regarding an employee’s rights to minimum wages or overtime pay qualify as protected activity under FLSA §215(a)(3), as long as those oral complaints give the employer fair notice that the employee is invoking rights under the FLSA. See Kasten v. Saint-Gobain Performance Plastic Corp., 563 U.S. 1, 14 (2010). The employee need not mention the FLSA to be protected, but the complaint must be sufficiently clear and detailed for a reasonable employer to understand it in light of content and context as an assertion of rights protected by the statute and call for their protection. See Dames v. City of Barron, 2019 U.S. Dist. LEXIS 89547 at * 28-29 (W.D. Wis. May. 29, 2019). The fair notice standard is objective. An employer has received fair notice of an FLSA complaint if a reasonable employer in the same circumstances, “armed with the knowledge of the relevant context,” would have considered the complaint to be an assertion of rights protected by the FLSA. See O’Donnell v. America at Home Healthcare & Nursing Services, 2015 U.S. Dist.LEXIS 18585 at *19 (N.D. Ill. Feb. 17, 2015).
An employee’s refusal to work for free is an assertion of one’s rights to compensation under the FLSA and is considered a complaint filed within the meaning of the FLSA. See O’Donnell, 2015 U.S. Dist.LEXIS 18585 at *20. Discharging an employee because he or she refuses to provide free labor is retaliation under the FLSA. See Id. at 20.
An employee claiming he or she suffered retaliation in violation of FLSA, §215(a)(3) must generally prove the following elements:
- He or she engaged in protected FLSA-protected activity under §215(a)(3);
- He/she suffered adverse employment action (i.e. retaliation); and
- The FLSA-protected activity was the proximate cause of the adverse employment action.
Each and every case is different and each case requires a detailed legal analysis by an experienced employment attorney. Several other factors that could be alleged by the employer may require further legal analysis and could have an affect on the uptime outcome of the potential litigation.
Brian J. Graber, Ltd., is a Chicago FLSA retaliation lawyer practicing FLSA retaliation law in the Chicagoland area. If you believe that you suffered retaliation in violation of the FLSA, §215(a)(3), contact Brian J. Graber, Ltd., for a free consultation.
IWPCA RETALIATION CLAIMS
Illinois does not recognize common law tort claims for retaliatory discharge when employers discharge their employees for exercising their rights under the IWPCA to collect disputed unpaid wages. See McGrath v. CCC Information Services, Inc., 314 Ill.App.3d 431, 440 (1st Dist. 2000). Effective January 1, 2011, the Illinois legislature rewrote the IWPCA, 820 ILCS 115/14 to include a statutory cause of action for employees who are retaliated against for exercising their rights under the IWPCA in disputes over unpaid wages and compensation.
The IWPCA, 820 ILCS 115/14(c) makes it unlawful for any employer, or any agent of an employer, who discharges or in any manner discriminates against any employee because the employee has engaged in any of the IWPCA-protected activities:
- Complains to his/her employer that he or she has not been paid in accordance with the IWPCA;
- Institutes a lawsuit against his or her employer for violations of the IWPCA;
- Files an administrative claim with the Illinois Department of Labor for violations of the IWPCA;
- Testifies in any lawsuit or administrative hearing about violations of the IWPCA.
An employee may have a statutory claim for retaliation under IWPCA, 820 ILCS 115/14(c) if his or her employer discharges or otherwise retaliates against the employee because a dispute over unpaid earned wages, unreimbursed expenses, unpaid tips, or unpaid commissions.
An employee claiming he or she suffered retaliation in violation of the IWPCA, 820 ILCS 115/14(c) must generally prove the following elements:
- The employee engaged in one or more IWPCA-protected activities identified above;
- The employee was discharged or suffered some form of retaliation; and
- The IWPCA-protected activity was the proximate cause of the discharge or retaliation.
Each and every case is different and each case requires a detailed legal analysis by an experienced employment attorney. Several other facts that could be alleged by the employer as to the reasons for the discharge or alleged retaliation may require further legal analysis and could have an affect on the outcome of the ultimate outcome of the potential litigation.
Brian J. Graber, Ltd., is a Chicago FLSA retaliation lawyer practicing wage dispute retaliation law under the FLSA and the IWPCA in the Chicagoland area. If you believe that you suffered retaliation in violation of the IWPCA, 820 ILCS 115/14(c), contact Brian J. Graber, Ltd., at (312) 291-4648 for a free consultation.