Deciding an issue of first impression, in Moore v. Appliance Direct, Inc., the Eleventh Circuit has held that courts have the discretion to award liquidated damages in FLSA retaliation suits.  Unlike suits for minimum wage or overtime wages, where such damages are mandatory, absent a showing of reasonable good faith by the employer, plaintiffs in a retaliation case under the FLSA must show that the circumstances justify such an award.

In Moore, delivery truck drivers brought an overtime wage lawsuit.  During the pendency of that litigation, they were terminated.  Thereupon, they brought a second suit, alleging that their terminations were in retaliation for their overtime claims.

The truck drivers prevailed at trial on their retaliation actions, but the court declined to award liquidated damages (which are an equal amount of  proven damages as a measure to punish the defendant for violation of the law).  The drivers appealed this aspect of the lower court’s ruling, asserting that the award of such damages is mandatory in retaliation cases, absent a showing of reasonable good faith action by the employer, just as it is in overtime and minimum wage actions.

The Eleventh Circuit observed that the plain language of the retaliation statute directed that courts shall impose such relief as may be appropriate to effectuate the purposes of the law; while, in contrast, the overtime and minimum wage statute stated that courts shall impose an additional amount as liquidated damages.  Thus, the imposition of liquidated damages was clearly meant by Congress to be discretionary.

Therefore, the Eleventh Circuit concluded that the award of liquidated damages, as well as any other damages for retaliation is discretionary upon a determination of whether doing so would be appropriate under the facts of the case.

The important point for employers is to establish facts that would make an award of damages inappropriate. Employers must be ready to defend any actions taken against employees who have made FLSA complaints.  If an employer can show that it had reasonable grounds for the action, apart from asserted retaliation for protected activity, the employer may be able to avoid damages.  Documentation of the legitimate, non-retaliatory reasons for the adverse employment action is, of course, critical.