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Shooting the HR messenger backfires
Excerpted from Pennsylvania Employment Law Letter, written by attorneys at the law firm Saul Ewing LLP October 21, 2005 The Third U.S. Circuit Court of Appeals (which covers PA, NJ, and DE) recently determined that an individual may lawfully make a claim for retaliation under the Fair Labor Standards Act (FLSA) even though she hasn't asserted her own rights under the statute. An HR manager, after attending an informational seminar, approached her supervisor with the concern that the company was violating the overtime provisions of the FLSA, and she was fired the next day. She filed a complaint against the company for retaliation under the FLSA, and the company's request that the court dismiss her case was denied. Background Carol Dougherty became HR manager for Ciber, Inc., a few years into her employment. As part of her training, she attended a seminar regarding federal and state wage and hour laws. Later, at a strategic planning meeting, she advised her immediate supervisor that she believed Ciber was violating the FLSA by paying certain employees overtime at the straight rate instead of time and a half and also by improperly classifying other employees as exempt so as to not pay them overtime at all. On the following day, she was fired without warning. Dougherty filed a complaint against Ciber in the U.S. District Court for the Middle District of Pennsylvania alleging she was fired in retaliation for her statement regarding the FLSA in violation of public policy. The company asked the court to dismiss the complaint against it, claiming that she failed to allege a valid claim under the statute. The court granted the dismissal on the public policy wrongful discharge claim but held that Dougherty had alleged a valid FLSA retaliation claim. Court's analysis Ciber claimed that Dougherty's statement to her supervisor wasn't statutorily protected because making it wasn't one of the protected activities enumerated in the FLSA. Additionally, Ciber argued that she failed to assert any rights that were adverse to the company according to the language of the statute. The court noted that the issue of whether making an informal complaint to an employer constituted protected activity under the FLSA was one that had never been decided by the Third Circuit. The FLSA makes it unlawful to "discharge or in any 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 law]." Most courts permit a retaliation claim under the FLSA when (1) the employee making the claim engaged in a statutorily protected activity, (2) the employer took adverse action following, or contemporaneous with, that activity, and (3) there's a causal connection between the activity and the employer's action. Using an application of Third Circuit law, the court began by noting that the language of the antiretaliation provision of the FLSA should be construed broadly. The court explained that the key to construing the provision is the need to "prevent employees' fear of economic retaliation for voicing grievances about substandard conditions." Accordingly, to protect the "remedial and humanitarian" purpose of the FLSA, it's necessary to make an internal complaint a protected activity under the "filed any complaint" language of the statute. Ciber argued that the phrase "filed any complaint" implies that an assertion of rights adverse to the employer is a prerequisite for protection under the FLSA. Once again, the court noted that that was an issue that had never been decided by the Third Circuit. The court determined that in light of its policy favoring broad interpretation of the FLSA, Dougherty's statement should be protected under the Act. It held that "[Dougherty's] statement would serve to notify [Ciber] about the substandard conditions and afford [it] the opportunity to come into compliance with the FLSA, which is consistent with the FLSA's remedial and humanitarian purpose." Thus, her conduct in making the statement was sufficient to make a claim under the retaliation provision of the FLSA. Lastly, the court addressed Doughterty's assertion of wrongful discharge in violation of public policy. The court held that while Pennsylvania law recognizes such a claim, it isn't appropriate when there's an available statutory remedy. Thus, because Dougherty had properly alleged a retaliatory discharge claim under the FLSA, her public policy wrongful discharge claim must be dismissed. Bottom line This decision is very important for three different rules of law. First, the court held that the phrase "filed any complaint" under the FLSA extends to informal internal complaints. Therefore, you must be aware that retaliation in response to concerns expressed on the job is pursuable in court under the law. Second, the court held that the "filed any complaint" language doesn't require that the individual affected actually make an assertion of her own rights to be protected. Therefore, you must also be aware that individuals who make general assertions or assertions on behalf of another about the FLSA are protected from retaliation under the Act. Finally, the court reiterated its position that wrongful discharge claims won't be permitted if there's an adequate remedy under a statute. Moving forward, therefore, you should make supervisory personnel aware of these new developments and be cognizant that retaliation against any individual asserting possible violations under the FLSA is protected by the Act. Copyright © 2005 M. Lee Smith Publishers LLC. This article is an excerpt from PENNSYLVANIA EMPLOYMENT LAW LETTER. PENNSYLVANIA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Pennsylvania employment law. Questions about individual problems should be addressed to the employment law attorney of your choice. Pennsylvania does not certify specialists in labor and employment law, and we do not claim certification in this area.
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