Employer Retaliation and FLSA
The U.S. Department of Labor recently issued Fact Sheet #77, which make clear that employers cannot retaliate against employees who complain of violations of the Fair Labor Standards Act (FLSA).
Under the FLSA, it is unlawful 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 [the Act], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee. 29 U.S.C. §215(a)(3).
Fact Sheet #77 also points out that “most courts have ruled that internal complaints to an employer are also protected.”
Minor v. Bostwick Laboratories illustrates this clearly. In this 4th Circuit case decided in 2012, an employee orally complained to a company executive that her supervisor was violating the FLSA by altering employee timesheets. When the employee was fired several days later, she filed a lawsuit against the company for retaliation. Although the employee did not file a formal complaint with the U.S. Department of Labor, the court held that the employee gave the employer reasonable notice. Therefore, the employee was entitled to protection under the FLSA’s anti-retaliation provision.
So, when an employee complains of FLSA violations informally to management — even orally — the employer has reasonable notice. In such instances, the employee may be entitled to protection under the FLSA’s anti-retaliation provision. Note that I wrote “may” because not all the courts are in agreement employees are entitled to protection when internal complaints are made. Even Fact Sheet #77 was carefully to write, “Most courts have ruled…” Most does not mean “all.”
What do the New Jersey courts have to say about this? The Third Circuit, which has appellate jurisdiction over the federal courts of New Jersey, has held that employees are entitled to protection when “intra-company” complaints regarding FLSA violations are made to management. See Brock v. Richardson, 812 F.2d 121 (3d Cir. 1987).
So, employers in New Jersey who retaliate against employees for complaining about FLSA violations may find themselves named defendants in a federal lawsuit. Naturally, in the best interests of all parties, employers shouldn’t retaliate.
What might constitute retaliation?
The easiest type of retaliation is termination or discharge of employment. But there are other activities that might be characterized as retaliation:
- Demoting the employee
- Transferring the employee to another department or location
- Refusing to grant FMLA, sick leave, or vacation time due to the employee
- Falsifying papers and placing it in the employee’s permanent records
- Unreasonably increasing the employee’s workload
- Refusing to talk or discuss any matter with the employee
There are many other examples of retaliation, to be sure. So, employers need to be cautious about how they respond to employees who make complaints about FLSA violations. If an employer does anything that appears to be a retaliatory act, it might not be so difficult for an aggrieved employee to prove that she has a case for retaliation under the FLSA.