Can You Fire Worker for Reporting Unapproved Overtime?

The Fair Labor Standards Act (FLSA) is one tough wage-and-hour law. Playing with it can create drama and cause trauma—especially when it comes to paying overtime or, in a case this week, not paying overtime…

Case in Point: Lisa Ritchie worked as an hourly employee for a St. Louis newspaper company. At one point, Ritchie was asked to take on additional duties from two other employees. That extra work, Ritchie said, caused her to work more than 40 hours per week. Her boss told her to perform the work without recording any overtime hours.

Ritchie put in the extra hours and wrote them on her time sheet. Her boss wasn’t happy, but paid the overtime anyway. He reminded her again to work only her assigned hours and not record any overtime. She reported overtime again, got paid and was fired.

Ritchie sued, saying her firing was retaliation for an FLSA compliant. She claimed the termination violated the FLSA provision that prohibits firing an employee “because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to (FLSA), or has testified or is about to testify in any such proceeding.”

The newspaper’s defense? It denied she ever made a complaint—oral or otherwise—and, therefore, no retaliation occurred.

Ritchie argued that the posting of her overtime hours served as an “informal complaint” and that was enough notice to the newspaper that she’d engaged in protected activity and shouldn’t be fired.

Result: The appeals court sided with the newspaper. It said even if Ritchie could show she was fired for disregarding instructions not to record her overtime work, she failed to allege that she made any complaint—even an informal complaint—that would bring her under FLSA protection for a ban on employer retaliation. (Ritchie v. St. Louis Jewish Light, 8th Cir., 1/4/11)

Noting that Ritchie’s lawsuit claimed only that her boss told her to stop recording overtime work, the court said, “(Her boss) could merely have been instructing Ritchie to complete the work required by the job within a 40-hour workweek and to stop working overtime altogether.”

3 Lessons Learned … Without Going to Court

1. Never fire anyone who has made a proper complaint under the FLSA. That can be retaliatory discharge.

2. Always properly pay overtime to any employee who has earned it.

3. But, if you have a written policy that requires pre-approval for overtime, you can discipline employees for violating the policy. Just make sure you also pay the employee for that overtime—discipline some other way than via the paycheck.