When “letting off steam” becomes protected activity under the FLSA

The Fourth Circuit Court of Appeals today held that an employee who complains to her employer about alleged violations of the Fair Labor Standards Act is protected from retaliatory action from the employer. In Minor v. Bostwick Laboratories, Inc., 10-1258, the court joined the majority of circuit courts of appeals in giving a broad interpretation to the anti-retaliation provisions of 29 U.S.C. § 215(a)(3). Although prior Fourth Circuit authority appeared to require an employee to file a formal complaint with the Department of Labor or the court, today’s opinion makes clear that an employee’s intracompany complaint to management will be sufficient to warrant protection. Ms. Minor had complained to a senior executive that she believed her supervisor was altering time cards to eliminate overtime. The executive responded that he would look into it. A few days later, the company terminated Ms. Minor allegedly for being disruptive in the workplace. She sued claiming illegal retaliation.

The court recognized that employees simply letting off steam will not be sufficient to invoke the protection of the FLSA. The employee’s report to the employer must be “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an
assertion of rights protected by the statute and a call for their protection." The court did not decide if the facts of the case supported a verdict. It simply decided that Ms. Minor had alleged enough facts to pursue the claim.

Employers need to be careful in how they respond to employee complaints regarding wage and hour issues.

By David Yandle

Mr. Yandle represents employers in all facets of employment law, including Title VII, ADA, ADEA, FLSA and FMLA.

Revenge of Dukes - Another One Bites the Dust

Relying on Wal-Mart v. Dukes, the US District Court for the Central District of California in Aburto v. Verizon California, Inc. has found no “commonality” in Rule 23 class claims brought by a Verizon “First Level Manager” in its fiber-optic cable workgroup. Since the claims were raised under California law and not under the FLSA, the “relatively lenient” collective action certification rubric did not apply, so traditional Rule 23 class principles were in play. Plaintiff failed to satisfy the court that common, class-wide questions of law and fact predominated; instead, individual assessments would need to be made, thus dooming the class action. Expect an appeal.

Click here to read the full opinion.

Horton Hears a WHAT?

Can the National Labor Relations Board reverse the Supreme Court? These days, nothing seems impossible, but the attached NLRB order, D. R. Horton, Inc., is remarkable both for its disregard of the decision last April in AT&T v. Concepcion, ___ U.S. ___, 131 S.Ct. 1740, which approved the signing of class action waivers in consumer contracts requiring arbitration, and for its delving into the province of the Department of Labor. At issue was an employer-required “mutual arbitration agreement,” challenged by a construction superintendent. The problem came to a head when the superintendent’s attorney informed the employer that he had been retained to represent a class of superintendents who claimed they had been misclassified as exempt executives. When the employer replied that there had been no notice of intent to arbitrate, the superintendent filed an unfair labor practice charge.

Click here to read the full opinion.