Does a ‘Good Faith Belief’ About an Illegal Pay Practice Support an FLSA Retaliation Claim?

By Staff Report

Aug. 6, 2012

April Hurd worked as a nurse’s aide for Blossom 24 Hour We Care Center. The company fired her 10 days after she complained about unpaid overtime. Easy case for the employee? If you think this is an open-and-shut case of retaliation under the FLSA, you are mistaken.

In Hurd v. Blossom 24 Hour We Care Center, Inc. (Ohio Ct. App. 8/2/12) [pdf], the court quickly disposed of Hurd’s retaliation claim:

There is no evidence that Hurd engaged in protected activity by requesting overtime. The U.S. Supreme Court has held that home health care workers are not entitled to overtime compensation because they constitute FLSA-exempt “domestic service” employees. Thus, because Hurd is exempt, her request for overtime did not constitute a protected activity.
Should this case have been this simple? In Title VII retaliation cases, there is a long-standing rule that an employee engages in protect activity by opposing an alleged unlawful employment practice with a reasonable a good-faith belief that the employer has violated Title VII. Some courts have extended this rule to retaliation cases brought under the FLSA.
If an exempt employee has a good-faith belief that he or she is not exempt and complains about missing overtime pay, shouldn’t that employee receive the same benefit as an employee complaining about an alleged unlawful employment practice under Title VII? Shouldn’t the employee’s good faith belief in the perceived illegality be put to the test?
What is the lesson for employers? Despite the ruling in Hurd, if an employee you have classified as exempt complains about overtime pay, do not assume it is safe to retaliate. The court deciding that employee’s case might not be as generous as the court was in Hurd.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or

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