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Protecting Employees by Preventing Retaliation

Pursuing legal action against your employer is at best intimidating; at worst it can leave you physically threatened and without means to support your family.

Employees considering lawsuits for unpaid wages and wage theft naturally fear retaliation, from termination to verbal threats or even physical violence. All too often, those fears are well-founded. While retaliating against an employee for joining a lawsuit is illegal, employers are often unaware of that fact—including, or even especially, those employers which employ low-wage workers, exactly the kind of people who would be most harmed by having their paychecks or compensation reduced or eliminated.

Essentially, retaliation is a weapon wielded by employers who wish to avoid payment of legally owed wages. It keeps employees in fear and out of court. Similarly, employers often hope to brush potential lawsuits under the rug through direct payments to would-be litigants. Along with outright retaliation, attempting to resolve individual claims through monetary settlements undermines the collective nature of Fair Labor Standards Act litigation, because employees are discouraged from joining collective or class actions. (The collective nature of the FLSA was expressly intended by Congress, and written into the law.)

All of these factors serve to underscore the importance of court directives to the employer not to retaliate, or injunctive relief. If you fear losing your job, the fact that your termination would be unlawful is a small comfort and will not adequately redress the immediate and actual loss you experience.

In other words, a future right to compensatory damages does not adequately address retaliation. Abruptly terminating workers—thus robbing them of the ability to support their families—leaves them merely the assurance that they might recover monetary damages years in the future, which fails to redress the harm of retaliation.

Employer advocates argue that increasing protection against retaliation will open them to accusations of retaliation every time they make a staffing change. But the fact is, any legitimate, economically motivated reduction in force or proper disciplinary action against an employee, properly documented, is nothing to worry about for an employer, so long as it it no driven by illegal retaliation.

Retaliation has a chilling effect on the efforts of workers to recover earned wages. Injunctive relief—which is built into the FLSA—does no more than preserve the pre-lawsuit status quo: the absence of threats and intimidation. That way, employees aren’t living in fear and hesitant to tell the truth, allowing wage disputes to be resolved and remedied.

Courts have broad power to employ injunctive relief, but are reluctant to use it. And yet, in complex commercial litigation, temporary restraining orders regarding large amounts of money are granted routinely, due to the fear that it might disappear. Why do courts seem to place a higher value on accumulated large-scale wealth than the fundamental right of an individual to earn a wage?

The Harman Firm is well-versed in preparing clients for the possibility of retaliation—and in seeking the additional damages incurred when it does take place. Over time, however, we hope to encourage practices which reduce retaliation altogether. The Harman Firm welcomes your questions and concerns.

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