Six Federal Circuits Now Allow Recovery of Emotional Distress Damages in FLSA Retaliation Cases

In a case of first impression, this week, the Fifth Circuit Court of Appeals held that workers claiming retaliation for funder the Fair Labor Standards Act (FLSA) may recover damages for emotional distress, in addition to the other damages available under the FLSA. (Pineda v. JTCH Apartments, LLC, 5th Cir., No. 15-10932, 12/19/16). The Fifth Circuit joined five other federal appeals courts (1^st, 6^th, 7^th, 8^th, 9^th) that previously have allowed such damages in FLSA retaliation cases.

Pined, who performed maintenance services for an apartment complex in exchange for reduced rent, sued his employer for unpaid overtime. He prevailed at trial, and the district court awarded him more than $6,600 for unpaid overtime, retaliation and liquidated damages. However, the district court did not allow the jury to consider emotional distress damages for his retaliation claim. The Fifth Circuit reversed this ruling, holding that Pineda can recover damages or his alleged emotional distress. According to the Fifth Circuit, the "expansive language" in a 1977 amendment to the FLSA "should be read to include the compensation for emotional distress" that is typically available to workers who sue for retaliatory discharge.

Emotional distress damages generally are difficult to quantify because they are determined by the jury and can be influenced by sympathy for the plaintiff or anger at the company. In Pineda's case, it is likely that the jury did not look favorably upon his employer—just three days after Pineda filed his lawsuit, the apartment complex sent Pineda and his wife a notice to vacate their apartment.

Takeaway: Lawsuits based upon wage and hour violations have become very attractive to attorneys who represent plaintiffs, and the availability of damages for emotional distress in retaliatory discharge situations will make these cases even more attractive to them. As in the case of any decision involving an employee who has engaged in protected activity, an employer should consult with experienced employment law counsel before terminating an employee who has filed a complaint for unpaid overtime.