Are you breaking some sort of law?: protecting an employee's informal complaints under the Fair Labor Standards Act's anti-retaliation provision.

• Author: Redmond, Jennifer Lynne

Discharges resulting from an employee's complaint about an employer's statutory violation are all too common. Recent statistics indicate that retaliation charges filed with the Equal Employment Opportunity Commission (EEOC) increased from 11,096 in 1992 to 19,694 in 1999.(1) Moreover, charges of retaliation now comprise over twenty-five percent of the EEOC's workload.(2) "The growth in the number of retaliation claims is especially impressive when compared with the statistics for sex and race claims, because the number of complaints for the latter has remained fairly constant over the last few years."(3) As the number of retaliation charges continues to increase, it becomes more important to understand the statutory provisions governing retaliation so that they may be applied consistently.

Consider the following story: From February of 1997 to May of 1998, Tessia Clevinger worked as a waitress for Motel Sleepers, Inc. (Motel).(4) Believing that she was not being paid fairly, Tessia complained on two separate occasions to her manager, Sue Dotson, about Motel's wage violations.(5) Each time Tessia complained, Dotson "chastised" her.(6) Tessia then contacted the Department of Labor (DOL) and made an inquiry regarding Motel's rate of pay.(7) The DOL told Tessia that the Fair Labor Standards Act(8) (FLSA) entitled her to receive the federal minimum wage for her work and that Motel owed her the difference between the minimum wage and what she had been paid.(9) Armed with this information, Tessia informed Motel's management that according to the DOL, Motel had violated the law in refusing to pay her minimum wage.(10) Motel's management reprimanded Tessia and insisted that she was wrong.(11) The management continued to harass Tessia until Motel fired her in May of 1998.(12)

Subsequent to her dismissal, Tessia brought a lawsuit against Motel charging retaliation(13) in violation of section 215(a)(3) of the FLSA.(14) Tessia argued that she had been fired in retaliation for complaining to Motel's management and for contacting the DOL regarding her wages.(15) In response, Motel argued that Tessia had never filed a formal written complaint with the DOL and, as such, her charge of retaliation could not be sustained.(16) The district court held that the FLSA did not entitle Tessia to protection from retaliatory discharge because Tessia had not filed a lawsuit against the company or a formal charge with the DOL before her dismissal.(17) Accordingly, Motel had the freedom to discharge Tessia for her complaints of unlawful conduct. The district court's decision left Tessia unemployed and without recourse.

Tessia Clevinger's plight highlights a vexing question that currently splits the federal circuits,(18) namely, with what degree of formality must an employee's complaint be filed in order to preserve a later charge of retaliation against the employer under section 215(a)(3) of the FLSA? This Note addresses the meaning of the phrase "has filed any complaint"(19) and argues that the correct construction of the provision includes informal complaints made to employers. The first section looks at the goals of the FLSA and the importance of the anti-retaliation provision to achieving those goals. It also includes a brief overview of the prima facie case of retaliation. Section two presents the divergent approaches taken in construing the language of section 215(a)(3). Courts on one side of the issue argue that the plain language of the statute protects only those employees who file a formal complaint with a court or government agency.(20) Other courts reject this approach, holding that the provision encompasses protection for informal complaints.(21) Section three surveys and evaluates the competing arguments surrounding this issue and argues that the statute should be construed broadly to include informal complaints. After concluding that informal complaints fall within the anti-retaliation provision, section four examines the degree of informality permissible under the FLSA and proposes a proper construction of the provision. The final section presents a summary and concludes that the anti-retaliation provision of the FLSA must allow employees to lodge informal complaints with employers before the goals of the FLSA can be achieved.

AN OVERVIEW OF THE FAIR LABOR STANDARDS ACT AND RETALIATION LAW

The FLSA is a "remedial and humanitarian" statute,(22) enacted during the Great Depression and intended to achieve "certain minimum labor standards" in those industries it covers.(23) The FLSA governs the payment of minimum wages(24) and overtime compensation.(25) The FLSA was amended in 1963 to include the Equal Pay Act (EPA),(26) which forbids wage discrimination based on sex by mandating equal pay for equal work. Congress saw compliance with these provisions as a means of achieving the FLSA's main goal, which was "to correct and as rapidly as practicable to eliminate [substandard conditions]."(27)

Rather than ensuring compliance with the FLSA through government supervision of employers, Congress looked to employees to report violations.(28) Employees will not do so, however, if they believe their jobs will be jeopardized by making the report.(29) This fear may cause "employees quietly to accept substandard conditions,"(30) which defeats the FLSA's goal of eliminating such conditions. Accordingly, the goals of the FLSA can be achieved only if employees are protected from any retaliation that may result from their complaints.(31)

The FLSA specifically provides protection from retaliation in section 215(a)(3):

[I]t shall be unlawful for any person ... to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.(32) Congress intended this provision to increase compliance with the labor standards established by the FLSA,(33) such as the minimum wage(34) and overtime regulations.(35)

In a charge of retaliation, the employee holds the burden of establishing a prima facie case by proving that: 1) the employee engaged in an activity protected under the statute of which the employer was aware; 2) the employee was subject to adverse action by her employer; and 3) there is a causal relationship between the protected activity and the adverse action.(36) Once the employee establishes a prima facie case of retaliation, the burden shifts to the employer to show a legitimate nonretaliatory reason for the adverse action.(37) If the employer is able to do so, the burden shifts back to the employee to show the employer's nonretaliatory reason is pretextual.(38) This Note examines the first prong of the prima facie case to determine if an employee's informal complaint is sufficient to constitute an activity protected under the FLSA.

TWO INTERPRETATIONS OF SECTION 215(A)(3)

The controversy surrounding section 215(a)(3)of the FLSA centers around the meaning of the phrase "has filed any complaint."(39) The divergent approaches taken in interpreting this phrase are illustrated in Lambert v. Genesee Hospital(40) and Lambert v. Ackerley.(41) The first approach, taken in Lambert v. Genesee Hospital, construed the statute narrowly and held the anti-retaliation provision to its "plain language" by requiring that an employee file a formal written complaint with a court or government agency, such as the DOL or the EEOC, before invoking the protection of the FLSA.(42) Conversely, the Ninth Circuit rejected this reading of the provision in Lambert v. Ackerley.(43) Following the other circuit courts that had addressed the issue,(44) the court held informal complaints sufficient to invoke the protection of the FLSA.(45)

Lambert v. Genesee Hospital

Lambert v. Genesee Hospital, the leading case supporting a narrow construction of the provision, involved a charge of retaliation that resulted from complaints alleging a violation of the EPA.(46) The plaintiffs prevailed at trial, but the Second Circuit reversed.(47) The court held that the plaintiff's informal complaints were not sufficient to constitute protected activity.(48)

The court supported its conclusion by looking to the "plain language" of the statute. The court argued that the plain language of section 215(a)(3) limits its scope to retaliation for filing a formal complaint with a court or government agency and does not protect complaints made to employers.(49) In reaching this conclusion, the court relied on Judge Suhrheinrich's dissenting opinion in EEOC v. Romeo Community Schools.(50) Judge Suhrheinrich argued that the section's prohibition of retaliation encompasses three enumerated behaviors,(51) "[s]pecifically, those who have (1) filed [an FLSA] complaint, (2) instituted an FLSA proceeding, or (3) testified in an FLSA proceeding."(52) This list comprises the entire scope of corn-plaints sufficient to fall under the statute.(53) The Genesee Hospital court further argued that the statute's unambiguous language made deference to the EEOC's interpretation that EPA retaliation should encompass informal complaints unnecessary.(54)

Lambert v. Ackerley

The Ninth Circuit, in Lambert v. Ackerley, rejected these arguments and held that the FLSA's anti-retaliation provision does encompass an employee's informal complaints made to an employer.(55) In support of that determination, the court first looked to the purpose of the statute.(56) It argued that the FLSA's remedial purpose required a broad interpretation of the Act.(57)

Congress intended the anti-retaliation provision of the FLSA to provide an incentive for employees to report their employer's wage and hour violations.(58) In support of that incentive, the antiretaliation provision was meant to ensure that employees do not risk their jobs when asserting rights under the FLSA.(59)...