A federal court in Vermont has ruled that the First Amendment does not protect a Milton, Vermont excavation contractor and its officials from using social media to retaliate against employees. The decision by the U.S. District Court for the District of Vermont is part of ongoing litigation between the Department of Labor and Bevins & Son Inc. and represents one of the first federal court decisions to address the relationship between the First Amendment and the anti-retaliation provision of the Fair Labor Standards Act (FLSA).
In May 2023, the Department of Labor announced a settlement with Bevins to recover $25,000 in punitive damages and $3,310 in back pay and liquidated damages after investigators determined that the company unlawfully fired an employee who complained about unpaid wages and threatened to inform labor authorities. Additionally, 17 other employees received $17,356 in unpaid overtime wages and liquidated damages as part of the settlement.
In October 2023, following this settlement, the department’s Office of the Solicitor filed suit alleging that company officials posted disparaging comments on Facebook about the unlawfully terminated employee. The posts implied that employers had illegally accepted kickbacks from employees for back wages and liquidated damages. In response, Bevins & Son Inc., along with company officials named as defendants, filed a motion to dismiss the lawsuit in December 2023.
The court recently denied this motion to dismiss. As a result, the department's suit seeking injunctive relief and punitive damages will proceed.
“The court’s opinion is a significant development in Fair Labor Standards Act anti-retaliation law, as it makes clear that employers cannot use speech as a mechanism for retaliation and then rely on the First Amendment to shield themselves from liability,” said Regional Solicitor of Labor Maia S. Fisher in Boston. “The U.S. Department of Labor will litigate aggressively to hold employers accountable and ensure that workers are free to assert their FLSA rights without fear of retaliation.”
In denying the motion to dismiss, the court agreed with the department that employer speech constituting adverse action against employees due to their FLSA-protected activity is not protected by the First Amendment. The court concluded that Facebook posts cited in Acting Secretary's complaint were retaliatory under FLSA.
“The law protects workers against retaliation that results from their exercise of Fair Labor Standards Act rights, and violations of this prohibition on retaliation can result in serious and costly consequences for employers,” said Wage and Hour Division District Director Steven McKinney in Manchester, New Hampshire. “The Wage and Hour Division is committed to protecting workers’ ability to speak up for themselves.”
More information about wage protections can be found through resources provided by the Wage and Hour Division. Employers and workers can contact the division confidentially with questions at 866-4US-WAGE (487-9243). The agency also offers a Timesheet App available for iOS and Android devices.
Su v. Bevins & Son Inc., Tiffany Creamer, Bryan A. Bevins
Case No. 2:23-cv-00560-wks
