Illinois Chief Alleges FLSA Retaliation

Former Paxton, IL, Chief of Police Robert Bane filed a lawsuit in federal court last week seeking money damages for unpaid overtime wages, additional unspecified money damages for retaliation under the FLSA, and a court order requiring that the city reinstate the chief to his former position. The lawsuit follows Chief Bane’s termination by the city in August 2017. Chief Bane’s attorney raises several different claims against the city. They include multiple violations of the United States Constitution, the Illinois Wage and Hour Act, and the FLSA’s anti-retaliation provisions. While this is not a firefighter case, the facts are interesting and there could most certainly be implications for other public employers as a result of the outcome of this case. Specifically, how should employers respond to employees following wage and hour complaints? Let’s dig a little deeper into the initial wage and hour complaints and subsequent FLSA claims.

Illinois State Wage and Hour Claims

In August of 2015, Chief Bane filed a complaint with the Illinois Department of Labor (DOL), claiming the city’s pay practices violated federal and state law. In particular, Chief Bane claimed he was owed close to $7,000 in overtime pay for attending city council meetings. The Illinois DOL investigation revealed the city was “not in compliance with the Illinois” wage laws. In response, Chief Bane filed suit in Ford County, Illinois, seeking back wages. In June of 2017, the court ordered the city to pay Chief Bane almost $1,200 in unpaid wages. Chief Bane requested a reconsideration of the amount of damages awarded, however the court dismissed that request in late September.

The Chief’s Termination

Two months following the initial judgment by the Ford County Court, the city terminated Chief Bane. According to Chief Bane’s complaint in this new lawsuit against the city, the city initially failed to give any cause for the chief’s termination. Following several inquiries, from both local news outlets and the chief’s attorney, the city reportedly wrote in a September 13, 2017 letter that Bane’s termination was in part because he had “utilized the fax machine at the Police Department” in support of his wage and hour claim against the city. This termination letter also listed the original wage and hour lawsuit filed by Chief Bane as an effort to “advance his own personal gain.” Coincidentally, at the time of the chief’s termination, this claim was still pending before the Ford County Court.

Retaliation Claims

These facts lead us to the next, and most important part of the story. Can an employer terminate an employee, even an at-will employee, for pursuing wage and hour claims under the FLSA? The answer is NO! (Please note the capitals, bold font, and exclamation point.) The answer lies in section 29 U.S.C. 215(a)(3) of the FLSA, which prohibits employers from discharging or discriminating “against any employee because such an employee has filed any complaint or instituted or caused to be instituted any proceeding” under the FLSA.

Here are a couple of critical aspects of FLSA retaliation claims employers must realize:

  • First, an employee does not have to file a lawsuit in order to receive the protections the FLSA anti-retaliation provisions provide.
  • Second, an employer can be found liable for FLSA retaliation for taking, or even threatening to take, an adverse job action against an employee. The employee does not need to be fired for an employer to be liable for retaliation.
  • Third, the employee does NOT have to succeed in the underlying FLSA claim to succeed in the retaliation claim. Think about that for a moment. . . the employee can lose the wage and hour claims and still win on the retaliation claims.
  • Finally, damages for FLSA claims are typically limited to 2-3 years of back wages, usually doubled, and typically the employer is responsible for the employee’s attorneys’ fees and other costs. However, damages for FLSA retaliation claims can be much more comprehensive. They can include pain and suffering, lost future earnings, even damages for emotional distress for the employee’s family. . .

Back to Chief Bane’s lawsuit. The city has yet to respond to the chief’s claims. I am sure they have a very different version of these events. This battle will most likely play itself out in the courts over the coming months and years. However, prudent employers must make every effort to avoid these types of claims. Employers must have clear policies and procedures in effect that address both wage and hour issues, as well as procedures for appraising job performance and expectations.

Here, Chief Bane was the police chief for more than ten years. The city opts to terminate this employment relationship (initially without any cause) only two months after a court found the city failed to pay him correctly. . . While the chief’s request for reconsideration of the amount of wages owed was still before the court. . . Do you find that timing suspect? How will the judge view it? We will keep you posted on this one as it develops.

Click here for more on the story from Ford County Record.

Here is a copy of the Chief’s complaint:

Paxton IL FLSA Police Complaint

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