Not covered by the FLSA, but still liable for FLSA retaliation? 

Yes, that is possible.

Suppose you're a small local employer whose employees are not entitled to overtime under the federal Fair Labor Standards Act.

OK, not very likely, but theoretically it could happen. 

"Boy, don't you EVER call the DOL again!"

And let's say Billy Jack, your employee who knows just enough about the law to be dangerous, complains that you are violating the FLSA by not paying overtime. When you respond that you don't have to, he files a complaint with the U.S. Department of Labor, which conducts an investigation. 

Because you are not covered by the overtime provisions of the FLSA, the DOL closes the investigation.

As soon as you receive notice of the closure, you fire Billy Jack for causing you all that trouble.

Billy Jack goes back to the DOL and says you retaliated against him for engaging in protected activity under the FLSA.

The DOL comes back, and this time finds a violation.

Srsly? Yes. Srsly.

The anti-retaliation provisions of the FLSA are not as limited in scope as the overtime provisions. The anti-retaliation provisions apply to any "person," defined broadly to include "an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons." 

For that reason, a slew of federal appeals courts (the U.S. Courts of Appeal for the Third, Fifth, Sixth, Seventh, and Ninth circuits) have found that an employer can be liable for FLSA retaliation even if it is not subject to the FLSA overtime requirements. The Tenth Circuit has now joined them.

(Don't know your circuits? Check our handy guide!)

So, local businesses and other employers not covered by most of the FLSA, beware. You might still be liable for FLSA retaliation.

Image Credit: From flickr, Creative Commons license, by Huysamen Engelbrecht.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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