Tag Archives: Faragher

S.D.Tex.: FLSA Does Not Impose A Duty On Employees To Mitigate Their Damages By Notifying Employers Of Their Failure To Pay Proper Overtime

Tran v. Thai

Notwithstanding the fact that the Fair Labor Standards Act (“FLSA”) imposes no duty on employees to mitigate their damages, a recent trend among attorneys for employers is to plead a so-called “Ellerth/Faragher” defense to claims brought under the FLSA, whereby the employer essentially argues that it’s the employee’s fault they didn’t get paid overtime, because they failed to complain about the employer’s failure to pay them appropriate wages.  An informal survey of Plaintiff’s attorneys by this author confirms that while defense lawyers are quick to plead such a defense, they are almost as quick in most cases to withdraw the defense- likely based on their understanding that it is frivolous- when pressed at the outset of FLSA litigation.  Here however, the defense was pled and the case proceeded to the summary judgment stage, giving the court a chance to address the unfounded affirmative defense.  Noting that such a defense was simply a defense of mitigation, which is not an appropriate defense to claims under the FLSA, the court granted Plaintiff’s motion for summary judgment on the defense.

The court reasoned:

“The defendants argue that the plaintiff failed to mitigate his damages by failing “to take reasonable actions to notify Nails of America # 3 of any alleged unpaid overtime accounts” and because “Plaintiff worked at Bow & Mary-Nails of America # 5, LLC from April 2007 through August 2008 and failed to take reasonable actions and tell Defendants of any alleged unpaid overtime amounts at any point.” (Docket Entry No. 59, at 17). The defendants have not cited any authority imposing a duty on an FLSA plaintiff to notify an employer of alleged FLSA violations. Courts have found that as a matter of law “there is no requirement to mitigate overtime wages under the FLSA.” King v. ITT Educ. Servs., Inc., No. 3:09-cv-848, 2009 WL 3583881, at *3 (M.D.Fla. Oct.27, 2009); see also Gonzalez v. Spears Holdings, Inc., No. 09-60501-CV, 2009 WL 2391233, at *3 (S.D.Fla. July 31, 2009) (granting a motion to strike mitigation-of-damages affirmative defense because there is no duty to mitigate damages under the FLSA, nor a duty to provide notice as to any alleged unlawful pay practice); Lopez v. Autoserve LLC, No. 05 C 3554, 2005 WL 3116053, at *2 (N.D.Ill. Nov.17, 2005) (granting the plaintiff’s motion to strike mitigation-ofdamages affirmative defense because there is no duty to mitigate damages under the FLSA); Perez-Nunez v. North Broward Hosp. Dist., No. 008-61583-CIV, 2009 WL 723873, at *2 (S.D.Fla. Mar.13, 2009) (granting motion to strike the mitigation-of-damages affirmative defense and holding that a duty-to-mitigate-damages defense based on the plaintiff’s failure to timely disclose alleged violations to her employer so that the terms of her employment could be corrected failed as a matter of law under the FLSA).

Because there is no duty to mitigate overtime wages under the FLSA, this court grants the plaintiff’s motion for summary judgment as to this affirmative defense.”

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