There’s retaliation, and then there’s beating up the complainant and sending him to the emergency room

The Fair Labor Standards Act makes it unlawful for employers to retaliate against employees who complain about violations of the FLSA. However, I don’t think the drafters of the law considered physical assault as a form of retaliation.

But the U.S. Department of Labor is now suing two employers and their owner. They allegedly responded to an employee’s request for his paycheck by beating him up, which resulted in a trip to the emergency room.

Irene Spezzamonte’s report about this lawsuit in Law360 caught my attention.

According to the DOL’s complaint, the employee worked for his employer for only three weeks.

Week one was uneventful. He worked, got paid, no fisticuffs.

In his second week of work, the employer allegedly failed to pay the employee until well after his payday (an FLSA violation). And, even then, it shorted him $250.

During his third and final week of work, the employee earned at least $750 in wages. His last day of work was payday, but the company had yet to pay the employee (another FLSA violation). So, the employee went to the office to ascertain the status of his paychecks for that week (and the previous week, for which the company had not yet paid him).

When the employee got to the office, he spoke with one of the owners about the pay situation. When the owner responded that he would pay the employee later, he asked for his wages again and told the owner that he would complain to the DOL if the owner did not pay him. That’s what we call a “protected activity” under the FLSA.

The owner responded by punching the employee repeatedly, pulling him to the ground, and pushing his fingers into the employee’s eyes as he wrenched his face — like a cross between mixed martial arts and the Three Stooges.

The altercation ended with no paychecks and a trip to the emergency room instead. Presumably, the employee did follow through on his word to report the employer to the DOL, which subsequently filed the lawsuit and is also seeking an injunction to require the defendants to abide by the FLSA by timely paying employees at least minimum wage, maintaining proper records, and not assaulting employees who complain about wage-and-hour concerns.

I’m not suggesting that you need to train your managers and other higher-ups not to beat the you-know-what out of folks who ask about pay discrepancies. (God forbid the employee had asked for a raise. Yikes!)

But this situation presents an opportune teaching moment to remind your decision-makers that the FLSA (and most similar state laws) have anti-retaliation provisions. And both the law (and presumably your internal policies and procedures) forbid retaliation in any form against individuals who raise concerns about pay.

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Before you train your managers, click here and register for the next edition of The Employer Handbook Zoom Office Happy Hour: “Unions: Fad or Trend?” Jon Hyman will be my guest on Friday, October 14, 2022, at Noon ET.

Jon is a shareholder and director at Wickens Herzer Panza in Avon, Ohio. In that capacity, he is a Practice Group Leader of the firm’s Employment & Labor Practice Group and a member of the Firm’s Litigation Department.

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