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FLSA Retaliation – Can A Plaintiff Obtain Emotional Distress Damages?

June 17, 2013

The damages provision of the anti-retaliation section of the FLSA states in relevant part:

Any employer who violates the provisions of section 215(a)(3) of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this title, including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages.

29 U.S.C. § 216(b).

Circuit courts that have addressed the issue have held that “legal or equitable relief” includes emotional distress damages. See Moore v. Freeman, 355 F.3d 558, 563–64 (6th Cir. 2004) (emotional distress damages are recoverable under the anti-retaliation provision of the FLSA); Broadus v. O.K. Indus., Inc., 238 F.3d 990, 992 (8th Cir. 2001) (emotional distress damages are recoverable in Equal Pay Act retaliation case); Lambert v. Ackerley, 180 F.3d 997, 1017 (9th Cir. 1999) (reversing and remanding emotional distress award of $75,000 under anti-retaliation provision of FLSA for determination of appropriate amount of emotional distress damages); Avitia v. Metro. Club of Chicago., Inc., 49 F.3d 1219, 1228–29 (7th Cir. 1995) (citing Travis v. Gary Cmty. Mental Health Ctr., Inc., 921 F.2d 108, 111–12 (7th Cir. 1990)) (emotional distress damages are recoverable under the anti-retaliation provision of the FLSA); Bogacki v. Buccaneers Ltd. Partnership, 370 F. Supp. 2d 1201 (M.D. Fla. 2005) (same).

The Fifth Circuit U.S. Court of Appeals has yet to address whether emotional distress damages are available in a FLSA retaliation claim. However, several district courts within the Fifth Circuit have held that they are not. See Douglas v. Mission Chevrolet, 757 F. Supp. 2d 637, 639-40 (W.D. Tex. 2010) (granting the defendant’s motion to dismiss plaintiff’s claims for emotional distress damages in a FLSA anti-retaliation claim); Rumbo v. Southwest Convenience Stores, LLC, No. EP–10–CA–184–FM (W.D. Tex. July 19,