U.S. employers continue to face significant risks from claims of unlawful workplace retaliation under federal law, including Title VII of the Civil Rights Act and the Fair Labor Standards Act (FLSA). To emphasize that point, the U.S. Equal Employment Opportunity Commission’s (EEOC) most recent statistics show that it received more than 46,000 employee retaliation complaints in FY 2023, up 8.5% from FY 2022. Retaliation charges accounted for approximately 56% of all charges processed by the EEOC.

It is fair to say that retaliation is a complex area of employment law, requiring a nuanced understanding for employers to effectively navigate the potential risks. The difficulty, put simply, is that employer retaliatory behavior can wear many masks, encompassing overtly adverse acts, such as a termination or demotion, to far more subtle, yet equally detrimental acts or omissions, such as creating a hostile work environment through multiple small slights, or “death by a thousand paper cuts,” as it has been described. 

Retaliation charges typically involve current employees, but not always. Consider the case the U.S. Department of Labor (DOL) filed against a Vermont-based company and its owners for “outing” in online posts a former employee who had lodged a complaint with the DOL for unpaid overtime, a violation of the FLSA.

Bevins & Son, Inc. (Bevins) is a construction and excavation company. Tiffany Creamer (Creamer) and Bryan Bevins were officers of the company. Riley Bockus, a former employee of Bevins and the alleged victim of Bevins’ retaliation, claimed to have worked more than 40 hours per week while employed with Bevins, which would have entitled him to overtime pay under the FLSA. Bevins disputed how Bockus calculated his work time and omitted overtime from Bockus’ paycheck. After no overtime was paid, and words of disagreement had been exchanged, Bevins terminated Bockus. Bockus filed a complaint against Bevins with the DOL.

The DOL’s investigation of Bockus’ claim ultimately resulted in a settlement between Bevins and Bockus. Under the settlement agreement Bevins was required to pay Bockus for previous overtime worked, and punitive damages as compensation for the company’s allegedly unlawful termination of him. The settlement agreement also contained Bevins promise not to discriminate against or discharge any employee for participating in any proceeding or asserting any rights guaranteed” to an employee under the FLSA. Retaliation is a form of discrimination under the FLSA.

The DOL then issued a press release stating that Bevins had terminated a worker (Bockus was not named in the press release) for asking to be paid in compliance with the FLSA and describing the terms of the settlement agreement, including the damages paid by Bevins. A local news station aired a TV news segment and published an online story about the DOL’s investigation of Bevins. Bockus was not identified in either the news segment or online story.

In response to the coverage, Creamer allegedly posted to Facebook:

To anyone who saw and watched the . . . news cast on our business. All we are going to say is please google the disgruntled employee whom was fired and contributed to the story Riley Bocus [sic] (his word and character will be seen).

Creamer’s Facebook post closed with, “We are still hiring [emoji] & ALWAYS do your do [sic] diligence when hiring someone.”  In a response to the Facebook post, one comment included a screenshot of a Google search showing that Bockus had engaged in criminal activity,” to which Creamer responded, “point made.”  Other comments also alleged that Bockus had engaged in criminal activity: Bevins and Creamer allegedly “liked” those comments.

The DOL filed suit against Bevins, Creamer and Bryan Bevins (collectively, the Defendants) in U.S. District Court for the District of Vermont, alleging that their post-employment Facebook posts were done in retaliation against Bockus, in violation of the FLSA. The Defendants filed a motion to have the case dismissed, arguing that their Facebook posts were protected free speech under the First Amendment.

The Court rejected the Defendants’ free speech defense, concluding that the Facebook posts could reasonably be found to have violated the FLSA and, therefore, were not protected by the First Amendment. An action is retaliatory and violated the FLSA if “it well might have dissuaded a reasonable worker from making or supporting similar charges.”  The Court concluded that an “objectively reasonable employee” could be deterred by the conduct alleged to have been engaged in by the Defendants and allowed the case to proceed forward.

The FLSA’s protections against retaliation apply to current and former employees. Here, Defendants’ post-employment public disclosure of Bockus’ identity and status as a FLSA complainant (which was not otherwise revealed in the public documents or news story) and actions that served to highlight Bockus’ alleged criminal activity “might plausibly tarnish” his reputation and might dissuade him and others from making or supporting similar FLSA charges.  With that, the Court denied Defendants’ motion to dismiss and allowed the case to move forward on the merits.

The legal nuances of retaliation claims can seem daunting. Here, the employer’s Facebook posts about a former employee – even if the posts were truthful – can give rise to a charge of retaliation, in violation of the FLSA. Other post-employment behavior, such as ’blacklisting’ the former employee, wrongfully refusing to write a recommendation to prospective employers or by sullying the former employee’s reputation, may also be viewed as retaliatory. Employment attorneys are well-versed in both the direct and circumstantial forms of workplace retaliation, including recognition of patterns and behaviors that employers may overlook or misinterpret in the absence of specialized knowledge, which is often the key to successful a defense or avoidance of a retaliation claim.

If you have questions or need any assistance concerning guidance around workplace retaliation claims, please contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.