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Fifth Circuit: Employers Liable for Emotional Distress Damages in FLSA Retaliation Claims

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By Michael B. Cohen

Beyond requiring that employers comply with statutory minimum and overtime wage provisions for nonexempt employees, the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., renders it unlawful for employers to retaliate against employees for asserting their rights under the law.  Employers are prohibited from “discharg[ing] or in any other manner discriminat[ing] against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA].”  29 U.S.C. § 215(a)(3).  Retaliation claims under this section generally require the performance of a “protected activity” by an employee, such as filing a complaint, a subsequent “adverse action” by an employer, such as terminating or demoting an employee, and a “causal connection” between the protected activity and the adverse action.  It is well established that employers who violate the anti-retaliation provisions of § 215(a)(3) may be liable for legal and equitable relief under § 216(b), including reinstatement, promotion, lost wages, front pay, liquidated damages, and reasonable attorney’s fees.  But what about other remedies, such as compensatory damages for emotional distress stemming from the retaliatory act(s)?

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