South Carolina employees often face retaliation for making complaints to management or HR about unpaid overtime or minimum wage under the Fair Labor Standards Act (FLSA). Some companies do not like being called out on their wage theft practices, and that can result in retaliation. But it’s important to note that complaints or reports of unpaid overtime or unpaid minimum wage are protected actions by the employee. That means that if a company decides to take an adverse employment action against the employee, such as termination, suspension, or demotion, then the employee now has a new legal claim: unlawful retaliation.
Retaliation for Making a Protected Complaint
I’ve written previously about what constitutes a protected complaint [see What is a Protected Complaint for South Carolina Employees?]. Not every complaint that an employee makes is protected. Even complaints about bullying in a general sense, if the bullying is not targeted based on someone’s age, race, sex, national origin, religion, or disability, would not be protected complaints.
When it comes to issues about unpaid minimum wage or unpaid overtime, the Fair Labor Standards Act (FLSA) also provides protection against retaliation. Section 15(a)(3) of the FLSA states that it is a violation for any person to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.”
What Triggers Protection Against Retaliation?
That protection is triggered under the FLSA when an employee makes a verbal or written complaint to management or HR about the unpaid overtime or minimum wage. For example, if an employee is paid a salary and required to work more than 40 hours a week without getting paid time and a half for the additional hours worked over forty, then the company has likely decided that the employee is not entitled to overtime pay (called exempt from overtime). But getting paid a salary is not enough to be exempt from overtime pay. The employee must also be working in a role that meets what are called the “Duties Tests” for that exemption, such as management with supervisory and hiring authority. If the employee complains to HR that he is not doing those required duties and is therefore entitled to overtime pay, then the employee has triggered the anti-retaliation provisions under the FLSA. (The employee also has the right to file a complaint with the U.S. Department of Labor about unpaid overtime or minimum wage, and this external complaint is protected.)
For hourly employees, the FLSA provides for a minimum wage of $7.25/hour ($2.13/hour plus tips for regularly tipped employees). If you are getting paid less than minimum wage, then the company has violated the FLSA and would owe you for those hours worked without proper compensation.
Keep in mind that oral and written complaints must be sufficiently clear and detailed for the company to understand that the employee is making a complaint about unpaid overtime or minimum wage under the FLSA. If you’re complaining to HR or your manager, I would recommend that you do it in writing and from your personal email account (so you’ll have a copy of the email if you get fired). Or if you complain in person, follow up with an email confirming that complaint.
Also, if you file a lawsuit for FLSA violations like unpaid overtime or minimum wage, or even if you testify as a witness in such a case or speak with a DOL investigator about a potential FLSA violation, then all of those actions would be protected against retaliation. [For more on retaliation, see What is Unlawful Retaliation for South Carolina Employees?]
Forms of Retaliation after Making Complaints about Unpaid Overtime and Minimum Wage Violations
In my experience, the most common forms of retaliation are termination, suspension, or demotion. But you could also experience harassment, increased write-ups, transfers, changes in hours or wages, or changes in locations or shifts. Keep in mind that some companies are savvy enough to try and create a paper trail of alleged poor performances right after an employee makes a complaint, as a way of laying the groundwork for firing an employee at a later date. This is more obviously the case when the employee has had no performance issues, write-ups, performance improvement plans, or negative performance reviews prior to the complaint. The longer the company waits between the complaint and the ultimate termination, though, the harder it is to prove that the company’s decision was based on the complaint itself.
If you’ve experienced any of these types of retaliation short of termination, then you should report that harassment to HR or management in writing as well. Takes notes of the harassment, including dates, times, locations, and witnesses.
You can also reach out to our office at (864) 233-4351 through our Contact Us page to provide additional information about your legal situation.
