If an employer fails to pay an employee overtime under the Fair Labor Standards Act (“FLSA”), the question turns to how to calculate damages. Non-exempt employees are entitled to time and one-half for all hours over forty in a workweek. Under the FLSA, the statute of limitations permits an employee recover two years’ worth of overtime plus liquidated damages (“double damages”) and attorneys’ fees and costs.
An employee, however is allowed to recover three years’ worth of overtime if the employee can prove by a preponderance of the evidence that the employer “willfully” violated the FLSA or show reckless disregard for the law. Reckless disregard can be shown by the employer’s failure to make adequate inquiry into their pay practices. In the 11th Circuit Court of Appeals, the question of willfulness and good faith presents a related inquiry, and “the judge and jury answer what is essentially the same question for two different purposes.” (citation omitted). First, the “willfulness or good faith question is answered … by the jury to determine the period of limitations….”
For an employer to avoid liquidated damages a/k/a “double damage,” the employer bears the burden of establishing both the subjective and objective components of that good faith defense against liquidated damages. “Subjective good faith means the employer has an honest intention to ascertain what the FLSA requires and to act in accordance with it.” “Objective good faith means the employer had reasonable grounds for believing its conduct comported with the FLSA.”
The addition of the third year of damages as well as the addition of liquidated damages can provide employees with a significant recovery.