Employees have powerful rights when it comes to blowing the whistle on their employer about wage and overtime violations. Section 15(a)(3) of the Fair Labor Standards Act (FLSA) provides that it is unlawful for any person to discharge or in any manner discriminate against any employee because such employee has filed a complaint or caused to be instituted any proceeding under or related to the FLSA.Many employees think what their employer is doing is illegal but they hesitate to blow the whistle because they are not 100% sure. Other employees will offer justifications for their employer's illegal actions because they assume that there is some technical exception that allows their employer to pay them $5.00 per hour. An ill-advised assumption, nevertheless, the FLSA retaliation provisions apply to any employee or former employee, even if an employer's wage and hour policies do not violate the Act. In other words, an employee has protection under the FLSA if they believe their employer's wage and hour policies violate the FLSA and complain about it, even if the believed violation turns out to be lawful.

The Supreme Court has made clear that the key to interpreting the FLSA anti-retaliation provision is the need to prevent employees fear of economic retaliation for voicing grievances about substandard conditions. See Lambert v. Ackerley, 180 F.3d 997, 1003 (9th Cir. Wash. 1999)Many employees believe that short of filing a lawsuit, they are not protected. This is false as well. Employees do not necessarily need to file a formal complaint for protection to apply either. Often times an oral complaint will suffice. The courts interpret informal complaints on a case by case basis, but as the Court held in Valeria v. Putnam Assoc. Inc. "the Supreme Court has stated that the FLSA must not be interpreted in a narrow, grudging manner... we conclude that the animating spirit of the Act is best served by a construction of §215(a)(3) under which the filing of a relevant complaint with the employer no less than with a court or agency may give rise to a retaliation claim" 173 F.3d 35, 43 (1st Cir. Mass. 1999)The legal elements to a FLSA retaliation action are simple. A claim of retaliatory discharge is analyzed under the same shifting burden test established in McDonnell Douglas Corp. v. Green.

The plaintiff has the burden of establishing a prima facie case of retaliation and must show: (1) participation in a protected activity; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action. Once the employee demonstrates a prima facie case of retaliation, the burden shifts to the employer to articulate a legitimate, nonretaliatory reason for the employee's rejection.

The employee then has the opportunity to rebut the employer's explanation and show that the reason given is pretextual. Burns v. Blackhawk Mgmt. Corp., 494 F. Supp. 2d 427 (S.D. Miss. 2007).If a jury believes the employee, they may be entitled to an award of lost wages, liquidated damages equal to lost wages, front pay, attorney's fees, pre-judgment interest, (in some circuits punitive damages) and even compensatory damages (which is rare for an FLSA action). See Section 16(b).As the Seventh Circuit said in Travis v. Gary community Mental Health Ctr., Inc.: "any employer who violates the provisions of § 15(a)(3) of the Fair Labor Standards Act, 29 U.S.C.S. § 215(a)(3), shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of § 15(a)(3), including without limitation employment, reinstatement, or promotion and the payment of wages lost and an additional equal amount as liquidated damages. Pub. L. 95-151, 91 Stat. 1252 (1977). This amendment authorizes "legal" relief, a term commonly understood to include compensatory and punitive damages." 921 F.2d 108, 111 (7th Cir. Ind. 1990)

And if at the end of the day, the employer interferes with a former employee's ability to obtain and/or retain new employment, that former employer can be sued for that as well. This includes your former employer disclosing to a prospective employer that you complained about their overtime policy.