Every significant worker protection law, whether at the federal or state level, protects workers who complain about and witness illegal or unsafe working conditions. Yet, year after year, retaliation remains the most common form of worker discrimination. Some employers and supervisors simply cannot accept that workers have rights that must be respected, and their actions and reactions to questions or complaints can be outrageous and unrelenting.
Back in June, we described some truly outrageous examples of illegal retaliation. Here is the latest nominee for the Pelton Graham Retaliation Hall of Shame:
Come on down, Miles Walker!
The U.S. Department of Labor Wage and Hour Division recently sued 811 Autoworks LLC, a Georgia auto repair shop, and its owner for retaliation. The facts are interesting and provide an insight into human nature and what makes retaliation such a difficult violation to prevent.
Andreas Flaten resigned from his job at 811 Autoworks in January 2021. Not having received his final paycheck of $915, Mr. Flaten called the Department of Labor to complain, which then contacted the owner, Mr. Walker. After initially refusing to pay the wages owed, Mr. Walker then chose to dump 91,500 oil-soaked pennies in Mr. Flaten’s driveway, along with a copy of his paycheck with an expletive written on it. When that act garnered local news coverage, the DOL alleges Mr. Walker posted defamatory statements on social media, including suggestions that Mr. Flatten was an animal abuser.
Not surprisingly, the DOL responded to Mr. Walker’s outrageous acts of retaliation. Following an investigation, on December 30, 2021, the DOL sued Mr. Walker and 811 Autoworks for over $39,000 in back wages and liquidated damages for violations of anti-retaliation, overtime, and record-keeping laws.
As a reminder, retaliation occurs when an employer takes adverse action because an applicant or employee asserts protected legal rights. Retaliation is often directed at whistleblowers and workers who complain about illegal discrimination or wage theft, such as unpaid overtime, sub-minimum wages, failure to pay the prevailing wage, or unpaid commissions.
Retaliation takes many forms, including:
- termination of employment;
- work-related threats, warnings, or reprimands;
- negative or lowered evaluations;
- transfers to less prestigious or desirable work or work locations;
- making false reports to government authorities or in the media;
- filing a civil action;
- threatening reassignment; scrutinizing work or attendance more closely than that of other employees;
- removing supervisory responsibilities;
- engaging in abusive verbal or physical behavior that is likely to deter protected activity, even if it is not yet “severe or pervasive” as required for a hostile work environment;
- requiring re-verification of work status, making threats of deportation, or initiating other action with immigration authorities because of protected activity; or
- taking or threatening to take adverse action against a close family member (who would then also have a retaliation claim, even if not an employee).
These actions, taken in response to an employee asserting their rights, are illegal and actionable, but what exactly should a worker suffering this type of treatment do?
It would help if you first made a general complaint to your employer that you are suffering retaliation. The employer has an obligation to review retaliation complaints, and sometimes things are resolved at this stage. If the conduct persists, you should keep a complete record of the facts, people/witnesses, and documents that evidence the retaliation and seek professional advice.
The professionals at Pelton Graham are here to help. Contact us for a no-cost, no-obligation telephone, video, or in-person consultation.
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