Chapter § 2-49 29 U.S.C. § 215(a)(3). Retaliation

• Jurisdiction: United States

2-49 29 U.S.C. § 215(a)(3). Retaliation

It 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.

2-49:1 Commentary

2-49:1.1 Lawyers as Defendants

In 2017, the Ninth Circuit held that a lawyer can be a defendant in a retaliation claim.

• Arias v. Raimondo, 860 F.3d 1185 (9th Cir. 2017) (FLSA makes it unlawful for "any person," not just any employer, to be liable for retaliation, and "person" is defined to include a "legal representative"; here, lawyer for defendant planned to make arrangements for immigration officials to arrest an illegal alien at his FLSA deposition).

2-49:1.2 Informal Versus Formal Complaints

What exactly is a "filing," under the United States Code, triggering protected status for the employee? Certainly, a lawsuit. But, what about complaints in the workplace? Two Fifth Circuit cases look at this issue.

• Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617 (5th Cir. 2008) (Fifth Circuit joins the majority of jurisdictions and holds that informal complaints to employer constitute protected activity under FLSA).
• Casey v. Livingston Parish Commc'ns Dist., No. 07-30990, 2009 U.S. App. LEXIS 4584 (5th Cir. Mar. 6, 2009) (applying Echostar and holding that informal, internal complaints constitute protected activity under the anti-retaliation provisions of the FLSA).

The Fifth Circuit did not, however, address whether such informal complaints must be in writing. In other words, while a complaint need not be filed with an administrative or government agency to be considered protected activity, the question remains whether the complaint to the employer must be in writing. According to the Seventh Circuit, it must.

• Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d 834 (7th Cir. 2009) (the "any complaint" language of the statute encompasses internal intra-company complaints; however, court held that the statutory word "filed" must be given meaning and thus an informal, internal complaint must be in writing to constitute protected activity).

But the United States Supreme Court disagreed:

• Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct 1325 (2011) (anti-retaliation provisions of FLSA cover oral as well as written complaints; Fifth Circuit had adopted this rule in Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617 (5th Cir. 2008); issue left open is whether a complaint, oral or written, may be made only to the government, that is, whether the anti-retaliation provision applies only to reports made to the government; thus defendants should continue to assert this as a defense).

One case has interpreted Kasten:

• Johnson v. Advertiser Co., 778 F. Supp. 2d 1270 (M.D. Ala. 2011) (plaintiff engaged in protected activity at newspaper where he was employed by telling management that he believed it was encouraging employees to underre-port hours worked; court notes that protected activity does not require the employee to invoke FLSA by name and that, under Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011), the phrase in the statute "filed any complaints" includes oral as well as written complaints; court further adopts the "cumulative" approach to determining if the plaintiff suffered an adverse employment action, that is, whether there was an adverse employment action must be viewed in the aggregate and not surgically parsed; however summary judgments granted to employer because plaintiff cannot establish that defendant's reasons for his termination were pretextual).

An excellent case for employers comes from a 2018 decision by a district court in the Western District of Texas. The court tackled the belief of some that merely mentioning overtime or wages to an employer is somehow protected activity. It is not.

• Santos v. Wincor Nixdof, Inc., No. 1:16-CV-440-RP, 2018 U.S. Dist. LEXIS 48736 (W.D. Tex. Mar. 23, 2018) (employee complained that she had too much work to fit within her forty-hour work schedule; plaintiff worked—according to her—additional hours to catch up on work but never told her employer or recorded the hours; in granting summary judgment, the court noted that she never complained about working and not being paid; moreover her emails seemed more concerned with how her failure to complete work would reflect on her motivation as an employee; thus, no protected activity means no retaliation claim).

Employees are never protected, however, if they merely pass along a complaint on wages as part of their job duties or make inquiries because of their job duties.

• Stewart v. Masters Builders Ass'n of King & Snohomish Counties, 736 F. Supp. 2d 1291 (W.D. Wash. 2011) (plaintiff worked as a sales and marketing director; various employees questioned him as to whether they should be classified as exempt or nonexempt; he raised the issue with his boss and HR; he asserted that in doing so he sought to correct what he believed were unlawful pay practices; he later sued under the FLSA's anti-retaliation provision; court, relying on Fifth Circuit's decision in Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617 (5th Cir. 2008), grants summary judgment to the employer because plaintiff was merely passing along information to HR as part of his job duties and not stepping "outside (his) professional role and (taking) on a role adverse to the company"; court rejects plaintiff's argument that he engaged in protected activity because he had contacted the state agency dealing with wages; court reasons that his purpose in contacting it was to gather information, not to actively assist other employees in asserting their FLSA rights).

The Fifth Circuit's decision in Hagan relied upon by the Stewart court, was analyzed by a case from the Southern District of Texas.

• Haynes v. Crescent Real Estate Equities, LLC, No. H-11-2201, 2012 WL 2574749 (S.D. Tex. July 2, 2012) (court denies employer's summary judgment on issue on whether plaintiff "stepped" outside her job duties when she claimed she was terminated for telling management that the company's bonus program was incorrectly paying bonuses to employees and that its policy was inconsistent with the FLSA; plaintiff created a spreadsheet showing amounts of what she considered inaccurate payments; employer, by contrast argued that her role was to ensure that it complied with employment-related laws, including the FLSA; court holds that there was a material issue of fact given plaintiff's testimony that her role was to ensure accuracy, not legal compliance, and that legal compliance was the purview of the company's lawyers; thus, employers should consider, in drafting job description for human resources that role is to ensure compliance).

The Fifth Circuit, though, continues to draw a hard line on the meaning of stepping outside the employee's normal duties.

• Lasater v. Texas A&M Univ.-Commerce, 495 F. App'x 458 (5th Cir. 2012) (summary judgment affirmed for employer where manager, during routine audit by a third party, stated that employer was not properly administering comp time; in doing so Fifth Circuit held that, "here [plaintiff] cannot demonstrate that her statements about comp time constituted a complaint as required by the FLSA [because] her statements were made as part of [her job duties];" moreover, and as a separate ground for affirming summary judgment held that "there is no evidence of conduct by [plaintiff] that reasonably could or should have been considered or understood by the employer as a positive assertion of rights against [the defendant]").

But in 2017 the Fifth Circuit considered this issue and gave it a more nuanced, pro-plaintiff analysis.

• Starnes v. Wallace, 849 F.3d 627 (5th Cir. 2017) (appeals court reverses summary judgment granted to employer and declares that trial court must look to employee's job description to determine what tasks are in the employee's scope of duties; here, plaintiff was a risk manager and compliance with the FLSA was not among her job duties; thus, she was not precluded from bringing an FLSA retaliation claim; moreover the plaintiff was not merely relating concerns of co-workers but instead telling the employer that it was violating the FLSA; finally, court rejected defendant's argument that there was no prima facie case because the complaint and the adverse employment action were two years apart, noting that the employer settled the issue with the employee just ten days before plaintiff was terminated and that a reasonable jury could conclude that "the time when funds have gone out the door may be when the retaliatory impulse is strongest.").

The Haynes case also discusses an issue yet to be resolved by the Fifth Circuit, namely whether a plaintiff, to be protected, must have a good faith belief that the employer is violating the FLSA in order to enjoy the protection of the anti-retaliation provision. Stated differently, the question is whether a plaintiff may bring an FLSA retaliation claim even if there was no actual FLSA violation.

Haynes, supra (court agreed with reasoning from the Seventh Circuit that "Congress might have put the risk on the employee to do his or her own homework and make sure that there was actually a violation before going to [management], but it instead protected the employee regardless . . . Congress instead wanted to encourage reporting of suspected violations by extending protections to employee who filed complaints. . . . There is no requirement that those laws must actually be violated. It is sufficient that the plaintiff had a good-faith belief that they might be violated. No further requirements are implied by the law," citing Sapperstein v. Hager, 188 F.3d 852 (7 th Cir. 1999); thus court rejects employer's argument in Haynes that employee had no good faith belief because she "did no...