Eleventh Circuit Rules: Liquidated Damages Not Mandatory in FLSA Retaliation Cases

In Moore et al. v. Appliance Direct, Inc. et al., 2013 U.S. App. LEXIS 3047 (11th Cir. February 13, 2013), the Eleventh Circuit Court of Appeals addressed the question of first impression -- whether a district court is required to add liquidated damages to the judgment in an FLSA retaliation case where the defendant did not show he was acting in reasonable good faith.  The Eleventh Circuit reviewed the text of 29 U.S.C. 216(b) and concluded that while successful unpaid minimum wage and overtime claims require liquidated damages if a defendant cannot show reasonable good faith, there is no such requirement in retaliation cases.  The Court's reasoning relied on the difference in statutory language between the first sentence of 216(b) -- dealing with unpaid minimum wage and overtime claims -- and the second sentence -- added in 1977 to provide a private right of action for retaliation claims.  Specifically, the Court held: 

In reviewing the cases cited by Plaintiffs and Pak, the briefs and oral argument of counsel, and the clear language of the statute, we join the Sixth and Eighth Circuits in holding that the second sentence in section 216(b), which allows such damages 'as may be appropriate to effectuate the purpose of the retaliation provision', creates a separate, discretionary, standard of damages for retaliation claims.  We therefore hold that the retaliation provision of 29 U.S.C. 216(b) gives the district court discretion to award, or not to award, liquidated damages, after determining whether the doing so would be appropriate under the facts of the case.  

Appliance Direct, 2013 U.S. Dist. LEXIS 3047, at * 23.

The Appliance Direct decision also reminds FLSA litigators of the standard for finding a corporate officer individually liable as an employer in a FLSA case:

A corporate officer is personally liable as an FLSA employer if he has 'operational control of a corporation's 'covered enterprise,' which may be involvement of the day-to-day operation of the company or direct supervision of the employee at issue. 

Appliance Direct, 2013 U.S. Dist. LEXIS 3047, at * 6.