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In a case of first impression within the 3rd U.S. Circuit Court of Appeals, an Eastern District of Pennsylvania judge has ruled that punitive damages are available under the Fair Labor Standards Act where a worker claims he was retaliated against for exercising his FLSA rights. In Marrow v. Allstate Security & Investigative Services Inc., Senior U.S. District Judge Louis H. Pollak found that only two federal appellate courts have tackled the question — the 7th and the 11th — and they reached conflicting results. Pollak opted to follow the 7th Circuit’s 1990 decision in Travis v. Gary Community Mental Health Center, which held that the statutory language allows for punitive damages. A decade after Travis, the 11th Circuit held in Snapp v. Unlimited Concepts Inc. that the FLSA’s retaliation provisions do not allow for punitive damages because the statute was designed only to “compensate” plaintiffs. Pollak found that the case boiled down to whether the statute’s use of the phrase “legal or equitable relief” includes punitive damages as a potential remedy. Although the statute does not specifically address the availability of punitive damages, Pollak found that “the simplest reading of its terms suggests that it contemplates the availability of punitive damages.” The statute’s retaliation provisions, he noted, state that employers “shall be liable for such legal and equitable relief as may be appropriate to effectuate the purposes … of this title.” Pollak found that punitive damages “are undoubtedly a form of ‘legal … relief.’ “ The question, Pollak said, is whether punitive damages are appropriate to “effectuate the purposes” of the law. Pollak found that they are because the statute’s purpose is to deter employers from punishing workers who exercise their FLSA rights. “Most jurisdictions have created common-law protections for employees who are wrongfully discharged in retaliation for conduct they have taken that furthers public policy. With few exceptions, these cases have provided that tort damages are available in such cases, including punitive damages where the employer has acted in an egregious manner,” Pollak wrote. “This seems to reinforce what might otherwise be obvious: punitive damages can deter undesirable conduct by employers,” Pollak wrote. The 11th Circuit’s Snapp decision, Pollak said, was premised on several misplaced arguments. The Snapp court found that if punitive damages were available under the FLSA’s retaliation provisions, they would be awarded in every case because such conduct is “inherently willful.” Pollak rejected that reasoning, saying “it seems unpersuasive to say that, since punitive damages would have to be awarded in every case Congress cannot possibly have meant that they be awarded at all.” Likewise, Pollak rejected the Snapp court’s reasoning that only the FLSA’s criminal provisions provide for punitive fines against employers. “The mere availability of fines for criminal violations … does not foreclose the availability of punitive damages in private enforcement actions,” Pollak wrote. “Civil remedies can be broadly described by using phrases such as ‘equitable and legal relief,’ but criminal penalties are normally specified with more precision.” In the suit, plaintiff Harry Marrow claims that he was fired from his job several months after he informed the U.S. Department of Labor about improprieties in Allstate’s wages and benefits. Marrow’s lawyers, Mark S. Scheffer and Gerald J. Pomerantz of Pomerantz & Scheffer, originally included a claim under the Pennsylvania Whistleblower Law, but later conceded that Marrow had no valid claim under that statute because Allstate is not a “public body.” Allstate’s lawyer, George A. Voegele of Klett Rooney Lieber & Schorling in Philadelphia, filed the motion to have the claim for punitive damages struck from the suit.

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