The number of overtime and minimum wage claims against employers under the Fair Labor Standards Act (FLSA) continues to rise, and with that rise comes the risk of FLSA retaliation claims. As a new case from the Tenth Circuit makes clear, the risk that an employer can be held liable for FLSA retaliation exists even when the employer has committed no actual wage violations.

Overtime claim denied

Fred Winters worked as a deputy county sheriff for Muskogee County, Oklahoma. His boss, Sheriff Pearson, instructed him to drive his assigned patrol car to Tulsa on his day off to have it outfitted with new equipment. Although Winters (understandably) did not want to do this on his day off, he did so because he was asked to by the sheriff. Later, on his time sheet, he requested 2.5 hours of overtime for making the trip to Tulsa. His time sheet was returned to him with his request denied. The evidence showed that the sheriff was annoyed at Winters for claiming overtime when the county was fixing up his patrol car.

Argument leads to termination; retaliation claim follows

Winters approached the chief deputy and, according to his testimony, asked why his time had been denied. An argument between Winters, the chief deputy, Sheriff Pearson and another employee followed, during which Winters stated that he could “go to the Labor Board” about the denial of the overtime. The dispute ended with the sheriff telling Winters that his services were no longer needed. Unbeknownst to Winters, when the argument began, the sheriff had apparently already decided to credit Winters with the overtime and had already submitted written approval for it.

Winters sued the sheriff and the county for FLSA retaliation. Although the district court granted summary judgment in favor of the employer on the FLSA retaliation claim, the Tenth Circuit Court of Appeals reversed this decision and held that a jury should be able to decide the claim.

Appeals court: jury should decide case

Just like with federal anti-discrimination statutes, the FLSA contains an anti-retaliation provision, protecting employees who take protected action under the FLSA from being retaliated against. To prevail on an FLSA retaliation claim, a plaintiff must show (1) protected activity, (2) adverse action, and (3) a causal connection between the two.

In this case the employer argued it could not be liable for FLSA retaliation because, first, it had never violated the FLSA because Winters was credited for the time spent on the Tulsa trip. The Tenth Circuit did not find this argument persuasive, correctly noting that “Plaintiff’s claim is that he was fired after he had complained about not getting paid overtime and had threatened to advise the Labor Board about it. To bring a retaliation claim, Plaintiff does not have to show that the Defendants’ conduct was actually illegal under the FLSA.”

Second, the employer argued that Winters’ passing comment about going to the “Labor Board” (presumably Winters meant the Department of Labor) during the argument was not a “protected activity” under the FLSA, like filing a complaint with the DOL or filing a lawsuit would be. The district court had agreed with the employer on this argument, but the Tenth Circuit did not. It held that even an “unofficial assertion of rights through complaints at work” could count as protected activity under the statute.

Finally, the employer argued that Winters was not terminated because of his complaint of being denied pay or credit for the trip to Tulsa, but because of his belligerent attitude during the dispute about it. Winters testified that he had not been belligerent during the meeting. The Tenth Circuit found that there was a factual dispute as to the reason for the termination, especially considering the fact that Winters was terminated “about three minutes” after Winters challenged the denial of his overtime and threatened to go to the Labor Board. Therefore, a jury could decide the case.

However, in one piece of good news for employers in this case, the Tenth Circuit did find that Winters could not bring an Oklahoma state law wrongful termination in violation of public policy claim (commonly known as a Burk tort) over his firing. The court found no clear articulation of public policy to support the claim.

Lessons for employers

This case holds several important lessons for employers. First is the reminder that employers cannot legally retaliate against an employee for an employee’s assertion of rights under the FLSA which, according to the Tenth Circuit, includes informal complaints about overtime pay at work. This is true even for an employer who is not actually in violation of any minimum wage or overtime laws. From a practical standpoint, employers should strive to make calm, reasoned employment decisions instead of giving into temptation to terminate an employee in the middle of a heat-of-the-moment disagreement. Finally, while terminations for an employee’s bad attitude or belligerence may be legal, any employer who makes such a decision mere minutes after an employee makes a complaint about his or her rights will likely end up explaining that decision to a court or a jury.

• Winters v. Board of County Commissioners of Muskogee County, No. 15-7011 (10th Cir., Dec. 10, 2015).