On February 13, the Eleventh Circuit Court of Appeals, which has jurisdiction over Florida, ruled that liquidated damages for a retaliation claim under the Fair Labor Standards Act (“FLSA”) are discretionary, and not mandatory. Moore v Appliance Direct, Inc. is the first decision on this issue in the Eleventh Circuit, which also covers Georgia and Alabama.
The plaintiffs in the Moore case sued their former employer for retaliation under the FLSA because the employer had outsourced their jobs as delivery drivers while their lawsuit against the employer for failure to pay overtime was pending. (The overtime case later settled.) A jury awarded each of the plaintiffs $30,000 in damages for retaliation. The plaintiffs then asked the court to award liquidated damages. The trial court declined to do so.
Under the FLSA, the award of liquidated damages (a doubling of the back pay) is mandatory when a plaintiff prevails on a claim for unpaid minimum wages or overtime, unless the employer acted in good faith and had reasonable grounds for believing that it had not violated the law. The plaintiffs argued that the award of liquidated damages was also mandatory when an employer is found liable for retaliation under the FLSA. Both the trial court and appellate court disagreed. The language in the FLSA says that when an employer violates the FLSA’s retaliation provision, it “shall be liable for such legal or equitable relief as may be appropriate to effectuate the purpose [of the retaliation provision], including without limitation, employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages.” The Eleventh Circuit determined that the language in the statute gives it discretion whether or not to award liquidated damages for a violation of the FLSA’s retaliation provision. In other words, the court has discretion to determine whether awarding liquidated damages is appropriate under the facts of the case.
This case is a small victory for employers. It is better not to retaliate in the first place. However, an employer liable for FLSA retaliation will at least have an argument that the facts do not warrant the doubling of lost wages as liquidated damages.