The Eleventh Circuit joined the Sixth and Eighth Circuits in holding that liquidated damages awards for FLSA retaliation claims are discretionary, not mandatory. Moore v. Appliance Direct, Inc., No. 11-cv-15227 (11th Cir. Feb. 13, 2013).  Though encouraging for employers, the decision does not specifically enumerate factors courts should consider in exercising discretion with respect to awarding or denying liquidated damages.


Background:  Plaintiffs, who were truck drivers, filed an FLSA overtime complaint against Appliance Direct (“Employer”) and its CEO.  While that suit was pending, the Employer allegedly changed the status of its truck drivers from employee to independent contractor.  It allegedly offered its current drivers independent contractor status, except for the named plaintiffs, who lost their jobs when their positions were outsourced to independent contractors.  Those individuals then claimed retaliation.  The U.S. District Court for the Middle District of Florida found the CEO liable for retaliation under the FLSA (the suit was stayed vis-a-vis the Employer, which had filed for bankruptcy), but declined to award liquidated damages. 

Ruling:  On appeal, the Eleventh Circuit considered whether the retaliation provision of the FLSA mandates a liquidated damages award where liability is found.  It found the first sentence in the applicable provision (in 29 U.S.C. § 216) mandated an award of liquidated damages for minimum wage and overtime violations.  But, it noted that the second sentence in that provision carved out retaliation, and concluded that the language and purpose of Section 216(b) show a different Congressional intent for retaliation claims.  Relying further on legislative history and decisions from the Sixth and Eighth Circuits, the Eleventh Circuit held that liquidated damages awards are discretionary for retaliation claims.  It affirmed both the retaliation judgment against the CEO and the denial of liquidated damages. 

This is a positive advancement for employers saddled with FLSA retaliation claims, which is important since such claims are on the rise.  Check out our related posts, which can be accessed here and here.

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.