An FLSA retaliation and unpaid overtime lawsuit filed by an Oklahoma fire marshal will continue following a decision last week by Chief Judge John E. Dowdell of the U.S. District Court for the Northern District of Oklahoma. Judge Dowdell denied attempts by both the City of Sand Springs, Oklahoma (the defendant) and Fire Marshal Stan Smith (the plaintiff) to end the lawsuit without a trail. It is very common in FLSA lawsuits for the parties to petition the court to reach a decision on the merits of the case based on the initial filings without a trial. Typically, these types of motions are filed relatively early in the litigation process.
The original suit—filed on September 19, 2017—contained rather basic allegations. Stan Smith, a fire marshal for the City of Sand Springs alleged the city failed to pay him for all hours worked. Or, to be more specific, the city failed to pay Smith for the time he spent working during his normally scheduled unpaid lunch break.
The FLSA requires employees be paid for all hours “suffered or permitted” to work. Regular firefighterovertime.org readers will recognize lawsuits over unpaid meal periods, pre-and-post shift activities, and other off-the-clock related work activities are relatively commonplace today. However, this story took an interesting and rather uncommon turn several months after the filing of the initial complaint that is worth a closer look.
According to court documents, the city launched an investigation into Smith’s work activities less than a month after he filed the lawsuit. During the course of this investigation, the city discovered Smith engaged in part-time employment between the years of 2014 and 2016 in violation of city policy. City policy reads in part:
“City employees may take other jobs on a part-time or temporary basis if the employee’s efficiency and attendance is maintained to the satisfaction of the Department Head or supervisor, there is no conflict of interest and the Department Head had approved such employment prior to the other employment. No employee shall engage in outside business or employment during regular schedule duty hours.”
Smith was terminated on February 1, 2018 for violating the above policy. As a result of this termination, Smith’s attorney(s) quickly added a claim of FLSA retaliation to the initial lawsuit.
The FLSA contains broad anti-retaliation provisions. Employers can be found guilty of the FLSA’s retaliation provisions if they discharge or otherwise discriminate against an employee because they made an FLSA complaint. In fact, the FLSA’s anti-retaliation provisions can be enforced even when the underlying alleged wage and hour violation cannot be proven. Think about that for a second… The claim for FLSA overtime can fail, yet the employer could still be liable to pay damages to the plaintiff for FLSA retaliation.
Additionally, damages for FLSA violations are generally limited to back wages, overtime, compensatory damages, and attorney(s) fees. Damages for retaliation claims can include pain, suffering, and even emotional stress. My spouse left, my dog died, and my car was stolen… all because my employer retaliated against me for pursuing my FLSA claim… Right?
In all seriousness, the facts of this case undoubtedly placed the city in an incredibly difficult position. A city employee claimed he worked through his unpaid meal period for the past several years. Is it not prudent for the employer to research the employee’s work history for this time? An examination of his computer and phone activity during the unpaid meal time could shed light on the validity of the employee’s claims.
But what happens if this investigation reveals a violation of city policy? Would the supposed rule violation have been discovered if the employee had never made a claim for overtime? Does that matter? Should it matter? Should this employee now be immune from departmental rules while their complaint is pending?
But, on the flip-side… What if the policy violation is simply a cover to get rid of the employee because they filed an overtime claim? Does the city even enforce this policy? If no, why would it start enforcing it now? If yes, has the city ever terminated previous employees that may have violated this policy?
There are more questions than answers at this point. Questions that will hopefully be asked and answered in a trial. Whether an employee engaged in retaliatory actions against an employee is a question of fact that can only be determined by examining all of the evidence presented at trial. Needless to say, we will be keeping an eye on this case as it moves forward. Here are copies of the most recent order and the initial complaint from 2017.