BOSTON – A federal court in Vermont has concluded 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 the latest action in ongoing litigation between the Department of Labor and Bevins & Son Inc. and represents one of the first federal court decisions in the country to outline the relationship between the First Amendment and the anti-retaliation provision of the Fair Labor Standards Act.
In May 2023, the department announced a settlement with Bevins to recover $25,000 in punitive damages and $3,310 in back pay and liquidated damages after investigators with the department’s Wage and Hour Division determined the company unlawfully fired an employee because the employee complained about unpaid wages and said they would inform the “labor board” of their concerns. The employer also paid 17 other employees $17,356 in unpaid overtime wages and liquidated damages as part of the settlement.
In October 2023, the department’s Office of the Solicitor filed suit, alleging that, in the wake of the settlement, company officials posted a series of comments on Facebook disparaging the unlawfully terminated employee and implying that the employers had illegally accepted kickbacks of back wages and liquidated damages from employees. Bevins & Son Inc., as well as the company officials who are defendants in the litigation, then filed a motion to dismiss the department’s suit in December 2023. The court’s recent decision denied the motion to dismiss. Based on that decision, the department’s suit seeking injunctive relief and punitive damages continues.
“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 department’s FLSA retaliation claim, the court agreed with the department that the First Amendment does not protect employer speech that constitutes adverse action against employees as a result of those employees’ FLSA-protected activity. The court then concluded that the employers’ Facebook posts set out in the Acting Secretary’s complaint were not protected speech because the Acting Secretary sufficiently alleged that the posts were retaliatory under the FLSA.
Read the Opinion and Order.
“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 and others,” 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.”
Learn more about the Wage and Hour Division, including a search tool to use if you think you may be owed back wages collected by the division. Employers and workers can call the division confidentially with questions, regardless of immigration status. The division can speak with callers in more than 200 languages through the agency’s toll-free helpline at 866-4US-WAGE (487-9243). Download the agency’s Timesheet App for iOS and Android devices in English or Spanish to ensure hours and pay are accurate.
Su v. Bevins & Son Inc., Tiffany Creamer and Bryan A. Bevins
Case No. 2:23-cv-00560-wks
