Keep Your Ears Peeled: Employment Law Update on the FLSA's "Anti-retaliation" Provision

by Nexsen Pruet, PLLC
Contact

The Fair Labor Standards Act (FLSA) is a statute of broad application that regulates, among other things, the payment of overtime. It includes an “anti-retaliation” provision, found at 29 USC § 215(a)(3), that prohibits an employer from retaliating against an employee “because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter.”

Last year, the U.S. Supreme Court held in Kasten v. Saint-Gobain Performance Plastics Corp. that an oral complaint could fall within the purview of FLSA’s anti-retaliation provision. The Court expressly declined to address the issue of whether the oral complaint had to be made to a government agency or whether an internal, intra-company complaint would be covered under the anti-retaliation provision. Interestingly, the complaints at issue in Kasten were, in fact, oral complaints made internally to a private employer. However, the Court found that the employer failed to raise the issue on appeal and declined to address it, leaving a split among circuit courts on the matter.

The Fourth Circuit Court of Appeals, which includes North and South Carolina, recently joined the majority of other circuits by holding, in the case of Minor v. Bostwick Laboratories, that an internal complaint can be protected under the FLSA’s anti-retaliation provision.

Minor Voices An Internal Complaint and is Subsequently Terminated

The plaintiff, Kathy Minor, was employed as a medical technologist with the defendant, Bostwick Laboratories, from December 2007 through May 2008. About one week prior to her termination, a group of Bostwick employees (including Minor) met with the company’s chief operating officer to report alleged violations of the FLSA. During the meeting, Minor reported to the COO that her supervisor was altering employee timesheets to remove overtime hours. The COO reportedly responded that he would look into the allegations raised during the meeting.

Six days later, Minor’s employment was terminated. Bostwick’s HR manager stated that she was fired because there was “too much conflict between Minor and the supervisor.” Moreover, the COO and HR manager stated that they had met with Minor’s co-workers and “had determined that [Minor] was the problem.” Minor contended that she never had any conflict with her supervisors and that she had never been written up or reprimanded by Bostwick.

Minor Files a Lawsuit Against Bostwick That is Dismissed

Following her termination, Minor filed a lawsuit against Bostwick in the U.S. District Court for the Eastern District of Virginia, alleging a violation of the FLSA. Minor contended that her complaint to the Bostwick COO regarding alleged alterations of employee timesheets constituted a “protected activity” under the FLSA. By extension, Minor argued that her employment was terminated in violation of the FLSA’s “anti-retaliation” provision because she engaged in that “protected activity.”

In response, Bostwick argued that an internal complaint was not covered as a “protected activity” under the FLSA’s “anti-retaliation” provision. The company filed a motion to dismiss Minor’s complaint, which was decided by the district court before the Supreme Court’s opinion in Kasten was issued.

Evaluating the text of the FLSA’s “anti-retaliation provision” without the guidance of Kasten, the district court reasoned that in order to constitute a “protected activity,” an act was required to be more akin to a formal, official proceeding to invoke the protections of the statute. The court went on to find that Minor’s internal complaint did not rise to the level of a “protected activity,” and dismissed her lawsuit. Minor appealed to the Fourth Circuit Court of Appeals.

Although the Fourth Circuit did not find the Supreme Court decision in Kasten to be controlling, it adopted much of the high court’s reasoning in its opinion.

In the text of its opinion, the three-judge panel engaged in a detailed examination of the FLSA and its remedial purpose. Moreover, the court noted that both the Secretary of Labor and the Equal Employment Opportunity Commission take the position that oral complaints constitute a “protected activity” under the circumstances. Ultimately, the court concluded that internal complaints, such as the one asserted by Minor, could be covered under the FLSA’s “anti-retaliation” provision.

Requirements For Internal Complaints To Constitute a “Protected Activity” Under the FLSA

Notably, the Fourth Circuit Court of Appeals observed that although an internal complaint could constitute a “protected activity” under the FLSA, not every instance of an employee “letting off steam” would qualify. The court noted that “some degree of formality” is required to constitute a “protected activity,” rising to the level where the employer receives “fair notice that a grievance has been lodged and does, or should, reasonably understand that matter as part of its business concerns.”

Applying the test articulated by the Supreme Court in Kasten, the appeals court held that the proper standard to be applied to determine whether an internal complaint constitutes a “protected activity” is whether the complaint was:

  • “sufficiently clear and detailed for reasonable employer to understand it”;
  • “in light of both content and context”;
  • “as an assertion of rights protected by the [FLSA]”; and
  • “a call for their protection”

It remains to be seen in the Fourth Circuit how broadly the foregoing test will be applied.

What Can Employers Do?

The Fourth Circuit’s opinion in Minor emphasizes the importance for employers to be on the lookout and “keep their ears peeled” for internal complaints. Given the potential consequences of failing to identify or otherwise mishandling such complaints, employers should review their internal grievance policies (including checking for anti-retaliation language), and update them as needed.

Moreover, once employee complaints related to the FLSA are identified, it is important that they be processed through a company’s grievance policy. To that end, employers should consider reviewing these issues with supervisory personnel to enable them to recognize and refer any such complaints to appropriate personnel.

Once a complaint has been processed through a company’s grievance policy, it is of paramount importance that it be directed to and administered by appropriate members of company management. Ideally, trained personnel should make the determination as to whether an internal complaint constitutes a “protected activity.” Consider documenting the results of grievances processed through the company’s policy, especially if those grievances have the potential for subsequent litigation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Nexsen Pruet, PLLC | Attorney Advertising

Written by:

Nexsen Pruet, PLLC
Contact
more
less

Nexsen Pruet, PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!