If an employer is illegally refusing to pay an employee earned wages, there are a number of avenues available for the employee to recover those wages. In Kentucky, an employee can file a complaint with the Labor Cabinet for the wages to be turned over, or alternatively, the employee can bring suit against the employer for the withheld wages. As can be imagined, this can often result in a very contentious relationship between the employer and employee. In some situations, the employer, angered by the complaint or lawsuit, may react by taking an adverse action (termination, demotion, reassignment with significantly different duties) against the employee. If such overtime retaliation occurs, what protection is provided to the employee under Kentucky law?
The answer has not been fully resolved. KRS Chapter 337, or the Kentucky Wage and Hour Act, governs the rights and privileges afforded to Kentucky workers regarding minimum wages, meal and rest breaks, and overtime. The Act does not provide a specific civil remedy for retaliation against an employee for protesting an employer’s unlawful acts under the Chapter. However, KRS 337.990, the statute which outlines penalties for violations of the Act, provides a provision that, for all intents and purposes, prohibits an employer from retaliating against employees. The statute reads, in relevant part:
(14) A person shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) when that person discharges or in any other manner discriminates against an employee because the employee has:
(a) Made any complaint to his or her employer, the commissioner, or any other person; or
(b) Instituted, or caused to be instituted, any proceeding under or related to KRS 337.420 to 337.433; or
(c) Testified, or is about to testify, in any such proceedings.
The language in the statute is fairly clear that retaliation or discrimination against an employee for making complaints about illegal conduct under the Act is prohibited. However, while this provision does provide a civil penalty for acts of overtime retaliation, it does not explicitly authorize a private cause of action for violations. Nevertheless, a number of plaintiffs have used KRS 337.990 as the basis for a cause of action against their employers.
Some plaintiffs have used this provision as the basis for a “wrongful discharge in violation of public policy” claim, through the use of KRS 446.070, see Berrier v. Bizer, 57 S.W.3d 271, 274 (Ky. 2001), and two plaintiffs simply brought causes of action for retaliation, generally, after being terminated for filing complaints for unpaid wages. See Smith v. Hous. Auth. of Middlesborough, 2005 Ky. App. Unpub. LEXIS 554; see also Sparks v. Wal-Mart Stores, Inc., 2010 Ky. App. Unpub. LEXIS 709.
The courts addressing these cases have not addressed directly whether such theories of recovery are viable, but the Supreme Court in Berrierseems to at least tacitly recognize the existence of the wrongful discharge claim, and the Court of Appeals in Sparks analyzes the retaliation claim under the framework of common prima facie civil rights claims.
Therefore, while no authoritative decision has announced that KRS 337.990 provides a cause of action for retaliation, it seems highly likely that such a claim is available to employees, which fits with the overall scheme of the Kentucky Wage and Hour Act.
So if you have reported or complained about illegally withheld wages, unpaid overtime, or not receiving proper breaks or lunch periods, and have subsequently been retaliated against, you may have a claim against your employer. Overtime retaliation is illegal and you should immediately seek the advice of counsel to determine what legal options are available to you.