Retaliation and Whistleblower Protection

If you think your employer has illegal wage and hour policies and practices, should you blow the whistle? If you do become a wage and hour whistleblower, do you have any legal protections? These issues are covered below.

Federal Law

Federal law protects wage and hour whistleblowers from retaliation if the employee does any of the following:

  • File a complaint related to the Fair Labor Standards Act (which governs minimum wage, overtime wages, child labor, breastfeeding accommodations, and equal pay for men and women).
  • Start (or cause to start) “any proceeding” under or related to the Fair Labor Standards Act.
  • Testify (or be about to testify) in a “proceeding” under or related to the Fair Labor Standards Act.
  • Serve (or be about to serve) on an industry committee.

The easiest way to get whistleblower protection is to file either a lawsuit or a complaint with the Department of Labor. Note that, unlike some other whistleblower laws, an employee does not have to go through additional steps (like first notifying the employer in writing) before getting whistleblower protection. The mere filing of a lawsuit or complaint with the Department of Labor is enough if your employer knows about the complaint.

The U.S. Supreme Court has said that an oral complaint can meet the requirement that a complaint has been “filed.” There is still some uncertainty about what kind of oral complaints count as giving whistleblower protection.

Ohio Law

Ohio law also protects wage and hour whistleblowers from retaliation, but the protections are split between overtime and minimum wage whistleblowers. For employees complaining about potential overtime violations, Ohio law is similar to federal law.

An employee gains whistleblower protection by doing any of the following:

  • Make any complaint to the employee’s employer or to the director of the Department of Commerce, that the employee has not been paid his or her required wages.
  • Make any complaint or start a proceeding related to Ohio’s wage and hour law.
  • Testify (or be about to testify) at any proceeding.

The big difference is that Ohio does not require that a complaint be “filed.” This means that whistleblowers can gain protection through a potentially broader range of activities.

Ohio law has even more protections for employees who blow the whistle about minimum wage violations or violations of Ohio’s recordkeeping requirements (found under Article II, Section 34a of Ohio’s Constitution). In those cases, whistleblowers are protected “for exercising any right under Article II, Section 34a of Ohio’s Constitution or any law or regulation implementing its provisions” or for assisting an employee or providing information to an employee with respect to those laws.

As an employee, if you are thinking about opposing your employer’s illegal wage and hour practices, you should consult with a wage and hour lawyer first. A lawyer can review your options and determine how best to assert your rights and still protect your job.

As an employer, if one of your employees has complained about a possible wage and hour violation, it is important that you proceed with caution. The law strictly prohibits retaliation, and retaliation is broadly defined. You might not like it, but you cannot fire an employee because he or she “blew the whistle.” If you were thinking about firing the employee for other reasons before the complaint, you should absolutely consult with a lawyer before proceeding. The money you might have to pay for a retaliation claim is usually much more than the underlying wage and hour claim.

We Can Help

The experienced wage and hour law team at Markovits, Stock & DeMarco is able to assist you with your wage and hour issues, including retaliation and whistleblowing issues.

What happens if an employer violates federal or Ohio anti-retaliation laws?

Federal and Ohio law have stiff penalties for employers who violate the wage and hour anti-retaliation laws. The employee who was retaliated against can recover lost wages and compensation from the employer.

Federal law allows whistleblowers to be “fully compensated” for any retaliation that they suffer. This can take many forms, but most often includes reinstatement (a fired employee gets their job back) or “future pay,” lost wages, liquidated damages equal to the lost wages, and even money to compensate the employee for mental and emotional distress.

Ohio law (Article II, Section 34a of Ohio’s Constitution), provides even more protection for minimum wage-related or record keeping-related whistleblowers. There, employees are entitled to compensatory damages (like lost wages, emotion distress damages, etc.) and also an amount to “deter future violations.” In other words, punitive damages are available. Plus, Article II, Section 34a of Ohio’s Constitution sets a floor of $150 for each day that the violation of the anti-relation rules continued.