Labor & Employment Law Daily Wrap Up, WAGE-HOUR—5th Cir.: Public officials may not invoke qualified immunity in FLSA retaliation suits, (Oct 28, 2026)

By Jason Albright, J.D.

“The FLSA’s silence does not resolve the issue.”

A public official may not invoke qualified immunity in an FLSA retaliation suit, the Fifth Circuit held in a matter of first impression. The common law did not immunize malicious retaliation when Congress authorized private FLSA retaliation suits, and the policies underlying qualified immunity do not justify extending the defense to such claims, the federal appeals court found. The underlying case involved an academic advisor at Texas A&M University who was fired after she returned from medical leave and complained to her supervisor that her paycheck might arrive late (Stramaski v. Lawley, No. 25-20348 (5th Cir. Oct. 27, 2026)).

Retaliation under the FLSA. The FLSA, enacted in 1938, the court initially observed, makes it unlawful “to discharge or in any other manner discriminate against any employee” because they asserted their rights under the Act.” It defines “employer” to include “any person acting directly or indirectly in the interest of an employer in relation to an employee,” and the appeals court has read that language to permit individual-capacity liability for supervisory employees.

Employer good faith. Congress dealt with employer good faith in two 1947 amendments. Under Section 259 of the Act, an employer who relies in good faith on specified administrative guidance regarding wage-and-hour liabilities has a defense. Section 260 gives courts discretion to withhold liquidated damages if the employer acted in good faith and had reasonable grounds to think its conduct was lawful.

Public employees. The FLSA says nothing about qualified immunity, however. Congress extended the Act to some public employees in 1966 and to state and local employees generally in 1974. At first, only the Secretary of Labor could enforce the anti-retaliation provision, but in 1977, Congress authorized private retaliation suits.

Academic advisor. The plaintiff in the case on appeal was an academic advisor at Texas A&M through the university’s Engineering Experiment Station.

Medical leave and insistence on timely pay. In 2019, after taking medical leave, she was told that she needed another doctor’s release or her pay would be late. She insisted that she be paid on time. HR first said her pay would be on time, then late, then on time again. She was timely paid after all.

“[A]ggressive” about the pay issue. After those exchanges, her supervisor, the head of the Industrial and Systems Engineering department at the public university, called her “aggressive” about the pay issue. He sent her home for the day.

Coaching and discharge. The department head then gave her a “coaching letter” listing alleged performance problems. She disputed those allegations in a memo. And a few days later, he fired her.

Lawsuit. She sued the department head under the FLSA, seeking damages and injunctive and declaratory relief. She alleged that he fired her for asserting her “legal right” to timely pay, and that he acted “knowingly, willfully, and with reckless disregard for the law.” He moved to dismiss under Rules 12(b)(1) and 12(b)(6), invoking sovereign immunity and, alternatively, qualified immunity.

A magistrate judge recommended dismissing the claims for injunctive and declaratory relief but rejecting both immunity defenses. The district court adopted the recommendation over the department head’s objections.

First appeal. He appealed, and in Stramaski I, the Fifth Circuit affirmed the denial of sovereign immunity because the claim was against the department head personally, not the state. The Fifth Circuit did not decide whether he could invoke qualified immunity. Both parties had assumed the defense applied to FLSA claims, so the appeals court left the question open for full briefing and “substantial analysis.”

It remanded for the district court to “make the initial resolution of whether the defense applies to the FLSA,” pointing to the two-part test enunciated in Wyatt v. Cole, 504 U.S. 158 (1992). The Fifth Circuit also noted that, even if qualified immunity did apply, the former academic advisor had not pleaded a violation of clearly established law.

Present appeal. On remand, the magistrate judge concluded that qualified immunity does not apply to the FLSA and recommended denying the department head’s motion to dismiss. The district court adopted the recommendation over his objections, and he appealed again.

Qualified immunity unavailable. Affirming, the Fifth Circuit held that a public official may not invoke qualified immunity in an FLSA retaliation suit. Under Wyatt, the court noted, “[t]o find an atextual immunity defense, the claimed immunity must be both (1) ‘so firmly rooted in the common law’ and (2) ‘supported by such strong policy reasons’ that ‘Congress would have specifically so provided had it meant to abolish the doctrine.’” Wyatt does not presume immunity as the default. Instead, it requires an affirmative historical basis. The appeals court ultimately concluded that the department head satisfied neither of Wyatt’s stringent conditions.

Statutory silence not dispositive. First, the appeals court noted, statutory silence does not settle the immunity question. The former academic advisor argued that, because the FLSA says nothing about qualified immunity, the defense is unavailable. “If it were only so simple,” noted the court. Congress legislates against settled common-law principles unless a statute displaces them. So, the court had to ask whether the common law recognized the claimed immunity at the time Congress acted.

Common law did not immunize malicious retaliation. As to the first Wyatt prong, the Fifth Circuit found that, although the common law protected officials exercising discretion when Congress acted—in 1936, 1966, 1974, and 1977—it did not extend that immunity to malicious conduct.

Immunity would undermine FLSA’s anti-retaliation provision. In addition, the reasons for qualified immunity were also incompatible with the FLSA’s protection against retaliation, according to the court. “The FLSA protects wages and working conditions,” the Fifth Circuit noted. “And § 215(a)(3) specifically protects employees who complain about violations of the Act. Allowing officials to claim qualified immunity for retaliation would undermine that protection.” The department head thus failed to satisfy Wyatt’s second prong as well.

The judgment of the district court was accordingly affirmed.

The case is No. 25-20348.

Judge: Willett, D.

Attorneys: Kalandra Nicole Wheeler (Wiley Wheeler) for Eva Kristine Stramaski. Dimitri Rocha, Office of the Texas Attorney General, for Mark Lawley.

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