Damages Under The FLSA

In addition to requiring the employer to stop its violations of the law (called injunctive relief), the FLSA permits the employee who was wrongfully denied minimum or overtime wages the difference between what the employee should have been paid under the law and what the employee was actually paid for two years prior to the date the employee filed the lawsuit or opted into the case. If the violation of the FLSA was "wilfull", damages may be awarded for three years prior to that particular employee becoming a plaintiff in the case. 29 U.S.C. § 255(a). Typically, the violation is willful, making the three year statute of limitations apply. Violations are willful if "the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute." Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 128, 105 S. Ct. 613, 83 L. Ed. 2d 523 (1985); see also McLaughlin v. Richland Shoe Co. 486 U.S. 128, 133, 108 S. Ct. 1677, 100 L. Ed. 2d 115 (1988). Malice and bad motive are not necessary to show willfulness. In fact, willfulness has been shown where the employer merely disregarded the possibility that the FLSA applied to plaintiffs.

Further, in most cases the prevailing employee is also entitled to an have their actual damages doubled. 29 U.S.C.A. § 216(b). This is called liquidated damages. The same willfulness standard for the three-year statute of limitations to apply also applies to the issue of whether liquidated damages should be awarded. The award of liquidated damages is mandatory unless employer shows that (1) act or omission giving rise to violation was in good faith and (2) he had reasonable grounds for believing that his act or omission was not a violation of § 216. This is a very difficult standard for the employer to meet.

Congress also encourages the filing of meritorious FLSA claims by providing for the recovery of reasonable attorneys' fees and costs of litigation by prevailing employees. This provides economic incentive to plaintiffs' counsel to take such employment claims, thus ensuring prosecution of meritorious claims. Silva v. Miller, 549 F.Supp.2d 1299 (S.D. Fla. 2008). Without a fee shifting provision, employees would have no motivation to bring, and attorneys would have absolutely no economic incentive to handle FLSA claims. The result would be that employers could egregiously flout federal overtime law with impunity.

Therefore, 29 U.S.C. § 216(b) states that the court in a private FLSA action "shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of litigation." Thus, once judgment is awarded to the plaintiffs, Plaintiffs are entitled to a fully compensatory award of attorneys' fees and expenses. 29 U.S.C. § 216(b). » Back to top