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N.D.Ga.: Defendant Barred from Unilateral Meetings With Putative Class Members Outside of Formal Discovery Process, Absent Detailed Disclosures to Alleviate Concerns re Chilled Participation and/or Retaliation
This case was before the court for consideration of the parties’ Joint Statement regarding restrictions on communications with putative class members, as required by L.R. 23.1(C)(2) of the Northern District of Georgia.
The specific issue raised by the parties’ Joint Submission was explained as follows:
In the Joint Statement, Plaintiffs raise a concern that Defendants will question putative class members about a policy requiring employees to lodge contemporaneous internal complaints about incorrect pay (“Complaint Policy”). Plaintiffs fear that if representatives of Defendants raise the Complaint Policy in communications with putative plaintiffs, the putative plaintiffs will believe that their failure to have lodged a contemporaneous complaint about incorrect pay may have been a violation of company policy that could result in their termination from employment. In its portion of the Joint Statement, Defendants do not deny an intention to make such inquiries of employees.
Initially the court discussed the basic applicable law:
[A]n order limiting communication between parties and potential class members should be based on a clear record and specific findings that reflect a weighing of a need for limitation and the potential interference with the rights of the parties. Only such a determination can insure that the court is furthering, rather than hindering, the policies embodied in the Federal Rules of Civil Procedure, especially Rule 23.
Gulf Oil Co. v. Bernard, 452 U.S. 89, 101–102, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981). “Unsupervised, unilateral communications with the plaintiff class sabotage the goal of informed consent by urging exclusion on the basis of a one-sided presentation of the facts, without opportunity for rebuttal. The damages from misstatements could well be irreparable.” Kleiner v. First Nat’l Bank of Atlanta, 751 F.2d 1193, 1203 (11th Cir.1985).
Based on its conclusion that there were inherent risks in the anticipated questioning by the defendants, the court held that the defendants were barred from communicating with former employee putative class members regarding the subject matter of the case, outside of the regular discovery process in the case and without the consent of plaintiff’s counsel. While the court permitted defendants’ counsel to speak with current employees who were putative class members, it set forth detailed prerequisites prior to any such communications, in order to safeguard against defenadnts’ improperly influencing putative class members from exercising their rights under the FLSA:
The Court finds that the risks inherent in the anticipated questioning by Defendants warrant the following limitations on Defendants’ communications with potential class members.
There shall be no communications with any named Plaintiff or with any current or future opt-in Plaintiffs outside the formal discovery process or without the consent of the named Plaintiff’s counsel of record, except-as to any currently employed present or future opt-in Plaintiff-for routine business matters unrelated to this action.
With respect to any presentation of information, including any views or opinions, to any “putative class members” by the Defendants—whether acting through management, counsel, other employees, or any other agent of any kind—that relates to the allegations and claims in this action, whether for the purpose of gathering information in a one-on-one or group basis to defend this action or to address any employee complaints regarding past, current or future compensation practices, such communication shall commence with the following statements:
(a) The person(s) present on the Defendants’ behalf is a Defendant employee or agent acting at the direction of Defendants’ management;
(b) The person(s) present on the Defendants’ behalf is there to address a lawsuit filed against the Defendants, as well as employee complaints, involving allegations that the Defendants failed to pay employees all the wages and overtime they had earned and were entitled to receive;
(c) The lawsuit is a class-action—which means the individual may receive money as a result of the lawsuit;
(d) The allegations of wrongdoing (accurately stated), accompanied by a copy of the Third Amended Complaint;
(e) The “putative class member” is under no obligation to stay, or listen, or speak, or respond;
(f) No record of anyone who does not stay, speak, or respond is being made and no record of who does not stay, speak, or respond will be made at any future time;
(g) No adverse action will be taken if the “putative class member” chooses not to stay, speak, or respond;
(h) No adverse action will be taken if the “putative class member” says, in substance, they believe they not were not properly compensated or did not receive all compensation owed to them, whether or not they complained to anyone about any compensation issues; and
(i) The “putative class member” is free to leave at any time, including at this point.
Click Wilson v. Regions Financial Corporation to read the entire Order Regarding Communications With Putative Class Members.
While the procedural posture of this case was somewhat unique, in that the Northern District of Georgia has a detailed/explicit rule regarding pre-certification communications (and there was a Rule 23 class claim in addition to the FLSA collective action claim), this decision will likely serve as a blueprint for many courts going forward, given the chilling effect unilateral meetings with current and former employees can have, as many courts have previously noted.
5th Cir.: Department Head Who Notified Employer of Potential FLSA Violations Did Not Engage in Protected Activity, Because She Did Not “Step Outside Her Normal Job Role”
Lasater v. Texas A & M University-Commerce
This case was before the Fifth Circuit on appeal of an order awarding the defendant summary judgment on plaintiff’s FLSA retaliation claim. Specifically, the plaintiff, a former department head for the defendant asserted that she was terminated for raising concerns regarding the defendant’s payroll policies (and failure to comply with the FLSA) to an independent auditor and later her supervisors. The court below held that plaintiff failed to allege that she had engaged in protected activity, because she was merely performing her duties for defendant when she reported her concerns regarding non-compliance. The Fifth Circuit agreed and affirmed the award of summary judgment for the defendant.
The Fifth Circuit recited the following factual history:
This case arises from TAMUC’s termination of Lasater’s employment in December 2009. From March 2006 to December 2009, Lasater was employed as the Director of the Office of Financial Aid and Scholarships at TAMUC. Prior to that, Lasater worked in the Financial Aid Department at Texas A & M University–Corpus Christi for 17 years.
In November 2008, Lasater met with Lori Ellison, an outside auditor from The Texas A & M University System who was conducting a regularly scheduled audit. During the meeting, Lasater alleges that Ellison asked her if she had any “concerns” and Lasater told her that “there were some things that were of concern to me and I felt like I needed to, in good faith, report some things that I thought were violations, including comp time.” Lasater alleges that in the course of the conversation with Ellison she discussed a number of problems related to the university’s employee compensatory time (“comp time”) policy. First, she was concerned that comp time had to be used before vacation time; because vacation time would be lost if not taken before the end of the year, this could in turn cause employees to lose accrued comp time. She also voiced her concerns that employees in her department had accrued large balances of comp time and were too busy for Lasater to allow them to timely use their comp time and still meet the demands of her office. Third, she specifically expressed her concerns about one of her employees, Diane Lewis, who had been promoted to a position within the department exempt from the overtime requirements of the FLSA and TAMUC had declined Lasater’s request that Lewis be paid for her accrued comp time after her promotion. Finally, Lasater alleges that she reported to Ellison her concerns about the operation of TAMUC’s Financial Services division, including its failure to “draw down” its allotted federal funds and the fact that it was not performing monthly reconciliations related to federal funds for financial aid. At the time of the meeting Lasater did not suggest to Ellison that TAMUC policies regarding comp time violated the FLSA or refer to any applicable law she believed had been violated.
Relevant TAMUC policy provides that employees who are not exempt under the FLSA may earn comp time for working more than forty hours per week; the policy requires component universities to compensate employees by giving them time off rather than paying them overtime. TAMUC policy also provided that administrators who supervise staff were to ensure that no employee accrue a comp time balance in excess of 240 hours and that, if necessary, employees were to use comp time before taking vacation time. Lasater, as a supervisor, had the responsibility for approving, and the authority to deny, employee leave requests. The policy also states that an employee who transfers between departments may, upon the department managers’ agreement, be paid for accumulated comp time but no policy required payment for comp time to an employee promoted within a department. TAMUC policy additionally provides that inquiries or interpretations of FLSA legal issues should be directed to the System Human Resources Office or the Office of General Counsel.
In December 2008, Ellison reported Lasater’s concerns up the chain of command to Lasater’s supervisor, Stephanie Holley; Mary Hendrix, Vice President for Student Access and Success; and Dan Jones, President of TAMUC. Lasater alleges that shortly after her conversation with the auditor Holley and Hendrix demanded to know why she had reported the comp time issue and began to act colder toward her, harassed her, increased their scrutiny of her, and forced her to take unqualified employees.
In May 2009, Holley gave Lasater a favorable evaluation, and in August, Lasatar received a merit raise. In September 2009, Holley and Hendrix met with Lasater and discussed their concerns about the need for a training manual, the role of Lewis, and how Lasater was not “allowing other people into [her] inner circle.” In early December 2009, Rose Giles, one of Lasater’s subordinates, approached Holley to discuss her frustration with the fact that she did not feel Lasater’s staff was properly trained. Holley then spoke with Susan Grove, the Assistant Director of Scholarships, who alleged that Lasater did not adequately train her staff, spent most of her time with co-employee Lewis to the exclusion of all others, repeatedly arrived late, and had a tendency to “lash out.” Grove stated that she was so distressed by Lasater’s management style that she was planning to leave the university. On December 15, 2009, Holley and Hendrix informed Lasater that her employment was terminated.
Discussing the type of behavior a management-level employee must engage in, for such behavior/activity to constitute “protected activity,” the court explained:
[T]his circuit has recognized that an employee’s communication does not constitute a complaint unless that employee “somehow steps outside of his normal job role” so as to make clear to the employer that the employee is “taking a position adverse to the employer.” Id. at 627–28. Such a requirement is “eminently sensible for management employees” because a managerial position “necessarily involves being mindful of the needs and concerns of both sides and appropriately expressing them.” Id. at 628. Thus, voicing “concerns is not only not adverse to the company’s interests, it is exactly what the company expects of a manger.” Id. (emphasis in original). Without such a requirement, “nearly every activity in the normal course of a manager’s job would be protected activity.” Id.
Illustratively, a personnel director responsible for monitoring compliance with workplace laws did not engage in protected activity when she discussed her “concerns about the company’s possible FLSA violations” with the president of the company. McKenzie v. Renberg’s Inc., 94 F.3d 1478, 1481 (10th Cir.1996). The Tenth Circuit found her “job responsibilities” included discussing wage issues and that assisting the company with FLSA compliance was “completely consistent with her duties.” Hagan, 529 F.3d at 627 (quoting McKenzie, 94 F.3d at 1487). It held that it is “the assertion of statutory rights (i.e., the advocacy of rights) by taking some action adverse to the company … that is the hallmark of protected activity.” Id. (emphasis in original) (quoting McKenzie, 94 F.3d at 1486). Thus because McKenzie “never crossed the line from being an employee merely performing her job as personnel director to an employee lodging a personal complaint about the wage and hour practices of her employer and asserting a right adverse to the company,” her discussion of her FLSA violation concerns with the president could not reasonably “be perceived as directed towards the assertion of rights protected by the FLSA.” Id. (emphasis in original) (quoting McKenzie, 94 F.3d at 1486–87).
Applying this standard to the facts at bar, the court held that the plaintiff failed to show she stepped outside of her normal job role in reporting her concerns regarding the defendant’s comp time system to the auditor and to her supervisors. Further, the court noted that even if she had, her actions could not reasonably be construed to have asserted FLSA rights on behalf of herself or the employees who were the subject of her conversations. Thus, the court affirmed summary judgment for the defendant.
Click Lasater v. Texas A & M University-Commerce to read the entire per curiam decision.
D.Md.: Compensatory Damages for Emotional Distress Are Available Under §§ 215 and 216(b) for Retaliation Claims
Randolph v. ADT Sec. Services, Inc.
This case was before the court on several pretrial motions of the parties. As discussed here, among the issues briefed before the court was whether compensatory damages are available to a plaintiff-employee pursuing a claim of retaliation under the FLSA. The court answered this question in the affirmative, noting the issue was one of first impression within the Fourth Circuit.
Restating the parties’ respective positions, the court explained:
ADT maintains that, as a matter of law, Plaintiffs are precluded from seeking emotional distress damages because such damages are unavailable under “the very similar damages provision of the ADEA.” (ECF No. 101, at 18). Plaintiffs disagree, pointing to several circuit court opinions upholding such awards. On this issue, Plaintiffs have the better end of the argument.
The court noted that the issue presented was one of first impression in the Fourth Circuit and then examined case law from other circuit and district level courts:
Neither the Fourth Circuit nor any district court within this circuit has previously determined whether a plaintiff may recover compensatory damages from emotional distress in an FLSA action. Four circuit courts of appeal—the Sixth, Seventh, Eighth, and Ninth Circuits—have, however, either directly or indirectly addressed the issue, and all have permitted the recovery of emotional distress damages. Moore v. Freeman, 355 F.3d 558, 563–64 (6th Cir.2004) (explaining that “consensus on the issue of compensatory damages for mental and emotional distress [in FLSA cases] seems to be developing”); Broadus v. O.K. Indus., Inc., 238 F.3d 990, 992 (8th Cir.2001) (upholding a compensatory award that may have included damages for emotional distress); Lambert v. Ackerley, 180 F.3d 997, 1011 (9th Cir.1999) (affirming an award of emotional distress damages in an FLSA action); Avitia v. Metro. Club of Chi., Inc., 49 F.3d 1219, 1226–30 (7th Cir.1995) (reducing an award for emotional distress damages after finding the award excessive, but noting that such damages are available under the FLSA (citing Travis, 921 F.2d at 111–12)).
The compensatory nature of the remedies in § 216(b) supports the outcome in these cases. “The [FLSA’s] statutory scheme contemplates compensation in full for any retaliation employees suffer from reporting grievances.” Moore, 355 F.3d at 563 (citing Snapp, 208 F.3d at 934; Lanza, 97 F.Supp.2d at 740); Republic Franklin Ins. Co. v. Albemarle Cnty. Sch. Bd., 670 F.3d 563, 568 (4th Cir.2012) (citing Snapp and Lanza for the proposition that the relief provided in § 216(b) “is compensatory in nature”). The text of § 216(b) expressly provides for “such legal or equitable relief as may be appropriate to effectuate” this compensatory purpose, employing the broad phrase “without limitation” to indicate that the enumerated remedies within that section are not exhaustive. 29 U.S.C. § 216(b). “[L]ike the forms of relief mentioned [therein], damages for mental anguish are intended to compensate the injured party for harm suffered.” Moore, 355 F.3d at 564.
Certainly, an argument could be made that the availability of liquidated damages [under § 216(b) ] would be sufficient to fully compensate a plaintiff with proof of actual economic damages but only minor, subjective mental anguish occasioned by an employer’s violation of the [FLSA]. However, in a case involving only nominal economic losses but proved retaliation consisting of concerted, directed harassment, resulting in grave emotional distress, such nominal economic damages or the available doubling of those damages would be insufficient to make the plaintiff whole. Damages for mental anguish would be the necessary compensatory legal relief “appropriate to effectuate the purposes of [the anti-retaliation provision].” Bogacki v. Buccaneers Ltd. P’ship, 370 F.Supp.2d 1201, 1203 (M.D.Fla.2005) (quoting 29 U.S.C. § 216(b)); cf. Snapp, 208 F.3d at 937 (reasoning that “district courts may have to exercise some creativity in awarding relief in retaliation cases” beyond those forms set forth in the statutory text).
The court then rejected the contrary holdings of courts that had held ADEA cases to be persuasive based upon the fact that the ADEA was patterned after the FLSA, noting that such reasoning:
fails to consider that the relief authorized under both statutes must be determined ‘not in isolation, but in conjunction with the other provisions of the Act[s], the policies they further, and the enforcement framework[s] they envision.’ Dean, 559 F.2d at 1038.” The court further distinguished the ADEA legislative framework by pointing out that “[t]he ADEA includes an administrative conciliation process that is critical to its enforcement framework… [and] [l]ooking to this process, circuit courts have repeatedly held that emotional distress damages are unavailable in ADEA actions because they would impede mediation and conciliation by discouraging early resolution of ADEA claims.
Thus, the court concluded:
Because “full compensation is the evident purpose and paramount policy” in an FLSA retaliation action, “the more reasoned approach” would permit a plaintiff who makes a proper showing to recover damages for emotional distress. Id.; Moore, 355 F.3d at 563–64. Neither party here has addressed the strength or weakness of Plaintiffs’ evidence of alleged emotional distress. Until the parties do so at trial, the court cannot conclude—as a matter of law—”that damages for mental anguish should be disallowed.” Id. at 1205–06. Plaintiffs will be permitted to seek emotional distress damages through a jury trial, and their motion on this issue will, therefore, be granted.
In light of the continuing disagreement of courts regarding this issue, this might be one to watch for further appellate level developments in the future.
Click Randolph v. ADT Sec. Services, Inc. to read the entire Memorandum Opinion.
4th Cir.: Intracompany Complaints Regarding FLSA Violations Are Protected Activity Within the Meaning of Anti-Retaliation Provision of 29 U.S.C. § 215(a)(3)
Minor v. Bostwick Laboratories, Inc.
Jafari v. Old Dominion Transit Management Co.
In two new opinions, one published (Minor) and one unpublished (Jafari) the Fourth Circuit confirmed that post-Kasten, intracompany complaints of FLSA violations are sufficient to trigger the protections of the anti-retaliation provision of 29 U.S.C. § 215(a)(3).
In Minor, the lower court had dismissed the plaintiff’s complaint premised on a violation of 215, holding that internal complaints, as opposed to those to a government agency, do not constitute protected activity. Reversing the lower court, the Fourth Circuit held that such intracompany complaints are indeed protected activity and thus, trigger the protections of 215.
Framing the issue the Fourth Circuit explained:
“The sole question presented by this appeal is whether an employee’s complaint lodged within her company—as opposed to a complaint filed with a court or government agency—may trigger the protection of the FLSA’s antiretaliation provision. This is an issue of first impression in this circuit.”
Initially the court noted that neither Kasten, nor any Fourth Circuit case law was directly on point. However, following the majority of circuits to have addresssed the issue, the court concluded that the statute was ambiguous as to this point and given the remedial nature of the FLSA such informal complaints should be protected.
After discussing the ambiguity in 215’s language regarding “filing” a complaint, the court reasoned:
“The Supreme Court in Kasten determined that oral complaints could constitute protected activity within the meaning of § 215(a)(3) based upon “functional considerations.” 131 S.Ct. at 1333. In light of the ambiguous nature of § 215(a)(3)‘s “filed any complaint” language, we find that these same functional considerations dictate that intracompany complaints qualify as protected activity within the meaning of the FLSA’s antiretaliation provision.
We first consider the basic goals of the FLSA. Consistent with other authority, we conclude that, because of the statute’s remedial purpose, § 215(a)(3) must be interpreted to include intracompany complaints.
The FLSA was enacted to combat “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.” 29 U.S.C. § 202(a). “The central aim of the Act was to achieve … certain minimum labor standards.” Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960). To ensure compliance with the provisions enacted to serve this purpose, Congress “chose to rely on information and complaints from employees seeking to vindicate rights claimed to have been denied.” Id. It included the antiretaliation provision in recognition of the fact that “fear of economic retaliation might often operate to induce aggrieved employees quietly to accept substandard conditions.” Id. In light of these objectives, the Supreme Court has consistently held that the FLSA “must not be interpreted or applied in a narrow, grudging manner.” Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597, 64 S.Ct. 698, 88 L.Ed. 949 (1944). We likewise recognized in Ball that where the statutory language permits, “we are instructed to read the FLSA to effect its remedial purposes.” 228 F.3d at 363–64.
With the statute’s purpose in mind, Kasten stated that “an interpretation [of § 215(a)(3) ] that limited the provision’s coverage to written complaints would undermine the [FLSA’s] basic objectives.” 131 S.Ct. at 1333. The Supreme Court further observed that such a limitation on the scope of the anti-retaliation provision would circumscribe flexibility in enforcing the FLSA. Id . at 1334. As a supporting point, the Supreme Court stated that “insofar as the antiretaliation provision covers complaints made to employers …, [limiting the scope of § 215(a)(3) ] would discourage the use of desirable informal workplace grievance procedures to secure compliance with the Act.” Id. Following this reasoning, we conclude that an interpretation that limits § 215(a)(3)‘s coverage to complaints made before an administrative or judicial body would overly circumscribe the reach of the antiretaliation provision in contravention of the FLSA’s remedial purpose. Allowing intracompany complaints to constitute protected activity within the meaning of § 215(a)(3), on the other hand, comports with the statute’s objectives as described by Congress’s findings and the Supreme Court’s interpretation of those findings.
Amici offer several persuasive policy arguments in support of this conclusion. They point out that protection of internal complaints encourages resolution of FLSA violations without resort to drawn-out litigation—and that failure to protect internal complaints may have the perverse result of encouraging employers to fire employees who believe they have been treated illegally before they file a formal complaint. Our sister circuits have voiced the same concerns in concluding that § 215(a)(3) protects intracompany complaints. See Valerio v. Putnam Assocs., Inc., 173 F.3d 35, 43 (1st Cir.1999) (“By protecting only those employees who kept secret their belief that they were being illegally treated until they filed a legal proceeding, the Act would discourage prior discussion of the matter between employee and employer, and would have the bizarre effect both of discouraging early settlement and creating an incentive for the employer to fire an employee as soon as possible after learning the employee believed he was being treated illegally.”).
Indeed, the majority of circuits to consider the question of whether intracompany complaints are protected activity within the meaning of “filed any complaint” have answered in the affirmative, basing their decisions on the FLSA’s remedial purpose.FN8 See, e.g., Hagan v. Echostar Satellite, LLC, 529 F.3d 617, 626 (5th Cir .2008) (“We adopt the majority rule, which allows an informal, internal complaint to constitute protected activity under Section 215(a)(3), because it better captures the anti-retaliation goals of that section.”); Lambert v. Ackerley, 180 F.3d 997, 1004 (9th Cir.1999) (en banc) (finding that § 215(a)(3) covered internal complaints based on its remedial purpose); Valerio, 173 at 42 (same); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989) (same); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir.1984) (same); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975) (same); see also EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989 (6th Cir.1992) (holding that an employee’s complaints to her employer were sufficient to trigger protection of the FLSA’s antiretaliation provision without explaining its rationale). Cf. Brock v. Richardson, 812 F.2d 121, 124–25 (3d Cir.1987) (holding that, because of the FLSA’s remedial purpose, a retaliatory firing based on an employer’s belief that an employee had filed a complaint—even when he had not—was prohibited by § 215(a)(3)). Thus, we adopt the majority view by holding that the remedial purpose of the FLSA requires intracompany complaints to be considered protected activity within the meaning of its antiretaliation provision.
Supporting our conclusion is the Secretary of Labor and the EEOC’s consistent position that intracompany complaints are included within the meaning of “filed any complaint.” We afford agency interpretations that do not have the force of law, like agency manuals and litigation documents, respect to the extent that they possess the “power to persuade.” Christensen v. Harris Cnty., 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). Factors we consider when determining whether an agency interpretation has the power to persuade include “the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements.” Skidmore, 323 U.S. at 140; see also Cunningham v. Scibana, 259 F.3d 303, 306–07 (4th Cir.2001).
Here, the EEOC has set forth the position that intracompany complaints constitute “fil[ing] any complaint” within the meaning of § 215(a)(3) in the compliance manual it issues to field offices. 2 EEOC Compliance Manual § 8–II(B) & 8–II(B) n. 12 (2006). In addition, both the Secretary and the EEOC have argued in litigation that intracompany complaints are covered by the FLSA’s antiretaliation provision. See, e.g., Br. for the Sec. of Labor and the EEOC as Amici Curiae at 26–30; Br. for the Sec. of Labor as Amicus Curiae, Kasten v. Saint–Gobain Performance Plastics Corp., 570 F.3d 834 (7th Cir.2009) (No. 08–2820). Thus, although it is not determinative, because the Secretary and the EEOC have consistently advanced this reasonable and thoroughly considered position, it “add[s] force to our conclusion.” Kasten, 131 S.Ct. at 1335.
We conclude by emphasizing that our holding that intracompany complaints may constitute “fil[ing] any complaint” under § 215(a)(3) does not mean that every instance of an employee “letting off steam” to his employer constitutes protected activity. Kasten, 131 S.Ct. at 1334. To the contrary, “the statute requires fair notice” to employers. Id. To protect employers from unnecessary uncertainty, “some degree of formality” is required for an employee complaint to constitute protected activity, “certainly to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand that matter as part of its business concerns.” Id. Therefore, the proper standard for the district court to apply is the aforementioned test articulated in Kasten: whether Minor’s complaint to her employer was “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.” Id. at 1335.
Minor’s allegations here meet the standard we have articulated to the extent required to survive a motion to dismiss. The facts as alleged in her complaint indicate that Minor expressed her concerns regarding FLSA violations to the chief operating officer of her company in a meeting specifically called for that purpose. Minor also alleges that this executive-level employee agreed to investigate her claims. At this stage, these allegations are sufficient. We note again that we express no view as to whether Minor should ultimately prevail under the standard we have articulated. We simply hold that, on the facts alleged, her complaint survives a motion to dismiss.”
Click Minor v. Bostwick Laboratories, Inc. to read the entire published Opinion. Click Jafari v. Old Dominion Transit Management Co. to read the companion unpublished Opinion. Also of interest is the DOL/EEOC Amici Brief filed in Jafari.
4th Cir.: Job Applicant Lacked Standing Under § 215 for Retaliation Against Prospective Employer; Protections Extend Only to “Employees”
Dellinger v. Science Applications International Corp.
Plaintiff commenced this action under the Fair Labor Standards Act of 1938 (“FLSA”) against Science Applications International Corporation which, she alleges, retaliated against her, in violation of the FLSA’s anti-retaliation provision, 29 U.S.C. § 215(a)(3), by refusing to hire her after learning that she had sued her former employer under the FLSA. As discussed here, the district court granted Science Applications’ motion to dismiss, concluding that Plaintiff was not an “employee” of Science Applications, as defined in the FLSA, and that the FLSA’s anti-retaliation provision does not cover prospective employees. On appeal, Dellinger contended that the district court’s reading of the statute was too narrow and that the FLSA’s anti-retaliation provision protects any employee that has been the victim of FLSA retaliation by “any person,” including future employers. Affirming the dismissal, the Fourth Circuit concluded that the FLSA gives an employee the right to sue only his or her current or former employer and that a prospective employee cannot sue a prospective employer for retaliation.
Rejecting the common sense approach proffered by the Plaintiff (and supported by the DOL, who filed an Amicus Brief in support of the Plaintiff), the Fourth Circuit reasoned:
“While § 215(a)(3) does prohibit all “persons” from engaging in certain acts, including retaliation against employees, it does not authorize employees to sue “any person.” An employee may only sue employers for retaliation, as explicitly provided in § 216(b). The use of the term “person” in § 215(a) is attributable to the structure of the provision, which prohibits a number of separate acts in addition to retaliation, not all of which are acts performed by employers. For instance, § 215(a)(1) prohibits any person from transporting “any goods in the production of which any employee was employed in violation of section 206 [minimum wages] or section 207 [maximum hours] of this title.” Thus, Congress prohibited the shipment of goods produced by employees who are paid in violation of the Act, and for enforcement, it authorized the criminal prosecution of any “person” violating the prohibition. See 29 U.S.C. § 216(a). Just as there is no remedy for an employee to sue such a shipper, there is also no remedy for an employee to sue anyone but his employer for violations of the anti-retaliation provision. Accordingly, if the person retaliating against an employee is not an employer, the person is not subject to a private civil action by an employee under § 216(b).
Considering the Act more broadly, we cannot overlook the fact that the FLSA was intended at its core to provide minimum wages and maximum hours of work to ensure employees a minimum standard of living necessary for “health, efficiency, and general well-being of workers.” 29 U.S.C. § 202(a). The anti-retaliation provision is included, not as a free-standing protection against any societal retaliation, but rather as an effort “to foster a climate in which compliance with the substantive provisions of the [FLSA] would be enhanced.” Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 293 (1960). Thus, the anti-retaliation provision was meant to ensure that employees could sue to obtain minimum wages and maximum hours from their employers without the employers taking adverse action against them for the exercise of those rights. This purpose is inherent in the employment relationship, which is the context in which the substantive provisions operate.
We have been unable to find any case that extends FLSA protections to applicants or prospective employees. Indeed, prior cases have reached the conclusion that we have, applying the anti-retaliation provision only within the employer-employee relationship. See, e.g., Glover v. City of North Charleston, S.C., 942 F.Supp. 243, 245 (D.S.C.1996) (noting that the “any employee” language in the anti-retaliation provision mandates that the plaintiff have an employment relationship with the defendant); Harper v. San Luis Valley Reg’l Med. Ctr., 848 F.Supp. 911 (D.Col.1994) (same); cf. Darveau v. Detecon, Inc., 515 F.3d 334, 340 (4th Cir.2008) (requiring, as part of a prima facie FLSA retaliation case, a showing of “adverse action by the employer”); Dunlop v. Carriage Carpet Co., 548 F.2d 139 (6th Cir.1977) (holding that an employee could sue his former employer when the former employer retaliated against the employee by advising a prospective employer that the employee had previously filed an FLSA suit).
We are sympathetic to Dellinger’s argument that it could be problematic to permit future employers effectively to discriminate against prospective employees for having exercised their rights under the FLSA in the past. The notion, however, that any person who once in the past sued an employer could then sue any prospective employer claiming that she was denied employment because of her past litigation would clearly broaden the scope of the FLSA beyond its explicit purpose of fixing minimum wages and maximum hours between employees and employers. We are, of course, not free to broaden the scope of a statute whose scope is defined in plain terms, even when “morally unacceptable retaliatory conduct” may be involved. Ball v. Memphis Bar–B–Q Co., 228 F.3d 360, 364 (4th Cir.2000).
Dellinger urges us to extend the FLSA’s definition of “employee” to protect job applicants, pointing to other statutes under which applicants are protected. In particular, she refers to the Energy Reorganization Act, the National Labor Relations Act (“NLRA”), the Occupational Safety and Health Act (“OSHA”), and the Pipeline Safety Improvement Act. Reference to these statutes, however, does not advance her cause. The case cited by Dellinger with respect to the Energy Reorganization Act merely assumed, without deciding, that an applicant was covered under that Act. See Doyle v. Secretary of Labor, 285 F.3d 243, 251 n. 13 (3d Cir.2002). While the NLRA does protect prospective employees from retaliation, the Act itself defines “employee” more broadly than does the FLSA, providing that the term “employee” “shall not be limited to the employees of a particular employer” unless explicitly stated. See 29 U.S.C. § 152(3). With respect to OSHA and the Pipeline Safety Improvement Act, regulations implementing those statutes have been promulgated to extend protections to prospective employees. See 29 C.F.R. § 1977.5(b) (OSHA); 29 C.F.R. § 1981.101 (Pipeline Safety Improvement Act). The Secretary of Labor has not, however, promulgated a similar regulation for the FLSA.
Because we conclude that the text and purpose of the Fair Labor Standards Act of 1938 link the Act’s application closely to the employment relationship and because the text of the applicable remedy allows for private civil actions only by employees against their employers, we hold that the FLSA anti-retaliation provision, 29 U.S.C. § 215(a)(3), does not authorize prospective employees to bring retaliation claims against prospective employers. The judgment of the district court is accordingly affirmed.”
In a must-read strong dissent, authored by Judge King, he indicated that he would have reversed the dismissal at the district court below. Following a lengthy discussion of the parallels in this case to the Robinson case- in which the Supreme Court reversed an en banc decision of the Fourth Circuit and concluded that similar statutory text in Title VII should be read expansively to protect former employees- Judge King explained that he would have held that job applicants are protected by § 215. Judge King challenges the majority who he asserts ignored binding opinions from both the Supreme Court and the Fourth Circuit in favor of what he calls their “textualist” approach:
“It is unlawful under the FLSA ‘for any person,’ not just employers, ‘to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted … any proceeding under or related to this chapter[.]’ 29 U.S.C. § 215(a), –(a)(3). The Act criminalizes willful violations of § 215, and it also provides civil recourse to ’employees affected’ by the retaliatory acts described in subsection (a)(3). See § 216(a), –(b). Affected employees are entitled to “legal or equitable relief as may be appropriate to effectuate the purposes of” the antiretaliation provision, ‘including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages.’ § 216(b). Liability attaches to ‘[a]ny employer,’ id., which ‘includes any person acting directly or indirectly in the interest of an employer in relation to an employee .’ § 203(d).
A plain reading of these several sections of the Act, taken together, indicates that Congress was concerned enough with retaliatory conduct to impose criminal penalties on actual decisionmakers (“any person”), regardless of whether that person could also be considered the employing entity or was acting at the entity’s behest. Civil liability for retaliation, on the other hand, is reserved for employers and their agents who are sued by an “employee,” which generally means “any individual employed by an employer.” § 203(e)(1). Science Applications is undoubtedly an employer subject to the Act, and Ms. Dellinger broadly qualifies as an employee, having once sued her former employer for allegedly violating the FLSA. It does not follow perforce, however, that “Dellinger could only sue Science Applications if she could show … that Science Applications was her employer.” Ante at 7 (emphasis added).
It would hardly be a stretch to interpret the FLSA to permit Ms. Dellinger’s action, particularly considering that other, similar remedial statutes already apply to employees in her situation…
…I am therefore left to wonder why, in the face of a statute’s relative silence as to a material enforcement term, we must presume that a particular avenue is foreclosed because it is not explicitly mentioned, rather than permitted because it is not specifically prohibited. See Healy Tibbitts Builders, Inc. v. Dir., Office of Workers’ Comp. Programs, 444 F.3d 1095, 1100 (9th Cir.2006) (“[F]aced with two reasonable and conflicting interpretations, [an act] should be interpreted to further its remedial purpose.”). The majority’s decision today bucks the trend begun by Robinson, which is indisputably toward an expansive interpretation of protective statutes like Title VII and the FLSA to thwart employer retaliation. See, e.g., Gomez–Perez v. Potter, 553 U.S. 474, 491 (2008) (concluding that, under applicable provision of ADEA, federal employee may state claim for retaliation as form of discrimination); CBOCS West, Inc. v. Humphries, 553 U.S. 442, 457 (2008) (ruling that anti-discrimination provisions of 42 U.S.C. § 1981 encompass action for retaliation); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 178 (2005) (same with respect to Title IX).
Behind this impressive array of authority is the Supreme Court’s acknowledgment of the vital role that antiretaliation provisions play in regulating a vast range of undesirable behaviors on the part of employers. See, e.g., Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 129 S.Ct. 846, 852 (2009) (observing that fear of retaliation is primary motivation behind employees’ failure to voice concerns about bias and discrimination and reversing Sixth Circuit’s judgment in employer’s favor as inconsistent with primary objective of Title VII to avoid harm to employees) (citations omitted); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006) (explaining that liability for Title VII retaliation extends well beyond those actions affecting terms and conditions of employment to include employer’s acts outside workplace that are “materially adverse to a reasonable employee or job applicant”). There is no reason to doubt that similar concerns obtain in the FLSA context, as expressed in Reyes–Fuentes v. Shannon Produce Farm, 671 F.Supp.2d 1365, 1368 (S.D.Ga.2009) (“Congress chose to rely upon information and complaints from employees seeking to vindicate their rights. Plainly, effective enforcement could thus only be expected if employees felt free to approach officials with their grievances”) (citations omitted).”
Given the strong dissent of Judge King, it is possible if not likely that this case might be headed to the Supreme Court. This is certainly one to keep an eye on.
Click Dellinger v. Science Applications International Corp. to read the entire Opinion and Dissent.
E.D.Va.: Plaintiff Alleged Actionable Retaliation Claim, Where Asserted Former Employer Denied Him Work as Independent Contractor In Retaliation for Testimony in Co-Employee’s Case
Boscarello v. Audio Video Systems, Inc.
In this Fair Labor Standards Act (FLSA) retaliation action, a former employee sued his former employers alleging that defendants retaliated against him, in violation of 29 U.S.C. § 215(a)(3), by refusing to provide him work as an independent contractor following his submission of an affidavit supporting a current employee’s FLSA claim against the employers. The case was before the court on defendants’ motion to dismiss, for failure to state a claim. At issue on defendants’ motion was whether a former employee states a valid FLSA retaliation claim where, the alleged retaliation consists of the employer’s refusal to provide its former employee work as an independent contractor, work that the employer was not contractually obligated to provide, but which the employer indicated would be provided. Following Fourth Circuit precedent, the court held that the Plaintiff had indeed stated a valid cause of action.
Click Boscarello v. Audio Video Systems, Inc. to read the entire Opinion.
U.S.S.C.: Oral Complaints Are Sufficient to Trigger the Anti-Retaliation Provisions of the Fair Labor Standards Act
Kasten v. Saint-Gobain Performance Plastics Corp.
Kasten brought an anti-retaliation suit against his former employer, respondent (Saint-Gobain), under the Fair Labor Standards Act of 1938 (Act), which forbids employers “to discharge . . . any employee because such employee has filed any complaint” alleging a violation of the Act, 29 U. S. C. §215(a)(3). In a related suit, the District Court found that Saint-Gobain violated the Act by placing timeclocks in a location that prevented workers from receiving credit for the time they spent donning and doffing work related protective gear. In this case Kasten claimed that he was discharged because he orally complained to company officials about the timeclocks. Holding that such oral complaints were not protected activity, the trial court granted the respondent summary judgment. Subsequently, the Seventh Circuit affirmed. Reversing, the Supreme Court held that the scope of statutory term “filed any complaint” includes oral, as well as written, complaints.
Click Kasten v. Saint-Gobain Performance Plastics Corp. to read the entire decision.
8th Cir.: Recording Overtime Over Defendant-Employer’s Objections Not Protected Activity Under 29 U.S.C. § 215
Ritchie v. St. Louis Jewish Light
Plaintiff brought this case under 29 U.S.C. § 215. Holding that informal complaints are not protected activity under the FLSA’s anti-retaliation provisions, the lower court dismissed and Plaintiff appealed, arguing that such informal complaints are protected activity. The Eight Circuit did not reach that issue however, because it held that Plaintiff had not even made such informal complaints, because it held continuing to record overtime worked, despite Defendants’ instructions not to does not constitute a “complaint.” As such, the Eighth Circuit affirmed the lower court’s decision.
Reasoning that Plaintiff had not engaged in activity that would be protected under § 215, even if § 215 protected informal complaints, the court explained:
“We need not decide today whether informal complaints are protected activity under the FLSA because there is nothing in Ritchie’s verified federal court complaint that alleged that Ritchie made any sort of complaint to either Levin or St. Louis Jewish Light. The verified complaint alleged that:
7. Starting on or about May or June 2009, Levin asked Ritchie to perform work (“Work”) [formerly] performed by two employees by herself which Ritchie commenced to do.
8. Levin asked Ritchie to perform the Work without recording overtime.
9. The Work required that Ritchie perform overtime hours (more than 40 hours in a week) (“Overtime”) which Ritchie recorded.
10. Levin complained to Ritchie about her recording the Overtime and again requested that she perform the Work without recording overtime.
11. When Ritchie continued to record the Overtime, she was terminated by Levin and [St. Louis Jewish Light].
(Appellant’s App. at 1-2.)
Even assuming that informal complaints are sufficient to trigger the anti-retaliation provision of the FLSA, a legal conclusion we do not make, Ritchie failed to allege sufficient facts to indicate that she made even an informal complaint to either Levin or St. Louis Jewish Light. The only complaining asserted in her pleading goes the other way-Levin complaining to Ritchie. Ritchie asserts that she complained pursuant to the FLSA when she gave “Levin notice that she believed Levin’s instructions were a violation of the law because she, in fact, recorded the overtime hours in writing despite his orders not to record them.” (Appellant’s Reply Br. at 4.) In fact, rather than constituting an affirmative complaint that would trigger the anti-retaliation provision of the FLSA, her recording of her overtime could be nothing more than mere insubordination, she having been instructed to the contrary. Insubordination is not protected under the FLSA, and insubordination is not sufficient to trigger the anti-retaliation provision in 29 U.S.C. § 215(a)(3). As appellees’ counsel noted at oral argument, if merely recording one’s overtime is a “complaint” that triggers the anti-retaliation provision of the FLSA, an employer would not be able to discipline an employee for working unauthorized overtime so long as the employee recorded the overtime.
As the Supreme Court has recently said, the plausibility standard, which requires a federal court complaint “to state a claim to relief that is plausible on its face, … asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949 (internal quotation marks omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]-‘that the pleader is entitled to relief.’ “ Id. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)).
To establish a prima facie case of retaliation under the FLSA, Ritchie would have to show that she participated in statutorily protected activity, that the appellees took an adverse employment action against her, and that there was a causal connection between Ritchie’s statutorily protected activity and the adverse employment action. See Grey v. City of Oak Grove, 396 F.3d 1031, 1034-35 (8th Cir.2005). The facts pleaded in Ritchie’s complaint do not permit us to infer more than the mere possibility of misconduct. Thus, Ritchie’s complaint merely alleged, but did not show, that Ritchie is entitled to relief.
Click Ritchie v. St. Louis Jewish Light to read the entire decision.
Douglas v. Mission Chevrolet
In addition to seeking unpaid overtime wages and liquidated damages under the FLSA, the Plaintiff alleged that he was entitled to emotional distress and/or punitive damages as a result of claimed retaliation in violation of the anti-retaliation provisions of the FLSA, 29 U.S.C. § 215(a)(3). Defendant moved to dismiss plaintiff’s claim for retaliation, asserting that neither emotional distress damages nor punitive damages are available under the FLSA. Construing comparable Fifth Circuit law pertaining to ADEA claims, the court agreed and dismissed the plaintiff’s retaliation claim.
The court addressed each type of damages separately:
“1. Emotional distress damages
The damages provision of the anti-retaliation section of the FLSA states, in relevant part,:
Any employer who violates the provisions of section 215(a)(3) of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this title, including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages. 29 U.S.C. § 216(b).
Circuit courts that have addressed the issue have held that “legal or equitable relief” includes emotional distress damages. See Moore v. Freeman, 355 F.3d 558, 563-64 (6th Cir.2004) (emotional distress damages are recoverable under the anti-retaliation provision of the FLSA); Broadus v. O.K. Indus., Inc., 238 F.3d 990, 992 (8th Cir.2001) (emotional distress damages are recoverable in Equal Pay Act retaliation case); Lambert v. Ackerley, 180 F.3d 997, 1017 (9th Cir.1999) (reversing and remanding emotional distress award of $75,000 under anti-retaliation provision of FLSA for determination of appropriate amount of emotional distress damages); Avitia v. Metro. Club of Chi., Inc., 49 F.3d 1219, 1228-29 (7th Cir.1995) (citing Travis v. Gary Cmty. Mental Health Ctr., Inc., 921 F.2d 108, 111-12 (7th Cir.1990)) (emotional distress damages are recoverable under the anti-retaliation provision of the FLSA). The Fifth Circuit has yet to address whether emotional distress damages are available in an FLSA anti-retaliation claim.
However, the Fifth Circuit has held that the remedies provisions of the FLSA and the Age Discrimination in Employment Act (“ADEA”) must be interpreted consistently. See Lubke v. City of Arlington, 455 F.3d 489, 499 (5th Cir.2006) (“Because the remedies available under the ADEA and the FMLA [Family and Medical Leave Act] both track the FLSA, cases interpreting remedies under the statutes should be consistent.”); see also Johnson v. Martin, 473 F.3d 220, 222 (5th Cir.2006) (applying ADEA precedent to the FLSA to determine whether wages earned after termination offset lost wage damages because “[t]he FLSA and ADEA have the same remedies provisions”).
The Fifth Circuit has addressed whether emotional distress damages are available under the ADEA, which has similar remedies provisions as the FLSA. See Dean v. Am. Sec. Ins. Co., 559 F.2d 1036 (5th Cir.1977). In Dean, the Fifth Circuit rejected the argument that the statutory language “legal or equitable relief” in the ADEA includes emotional distress damages. Id. at 1038. In so holding, the Fifth Circuit emphasized the notably absent phrase “general damages,” “punitive damages,” or any type of damages based on emotional distress from the ADEA’s damages provisions. Id. at 1038-39. In the FLSA damages provision cited above, the same phrases are absent.
Since the Fifth Circuit has expressed its desire for the FLSA’s remedies provision to be interpreted consistently with the ADEA’s remedies provision, and since emotional distress damages are not available in claims brought under the ADEA, see Dean, 559 F.2d at 1038, this Court must hold that emotional distress damages are also unavailable under the FLSA. It is for this reason that another judge on this Court has already reached the same conclusion in another case. See Rumbo v. Southwest Convenience Stores, LLC, No. EP-10-CA-184-FM (W.D.Tex. July 19, 2010) (order granting motion to dismiss) (employing similar reasoning in granting the defendant’s motion to dismiss plaintiff’s claims for emotional distress damages and punitive damages in an FLSA anti-retaliation claim). Therefore, Plaintiff may not recover damages based on emotional distress in his anti-retaliation claim brought under the FLSA.
2. Punitive damages
Similarly, Defendant contends punitive damages are not available in an anti-retaliation claim based on the FLSA, Mot. 2, while Plaintiff claims punitive damages are recoverable. Resp. 3. Federal appellate courts that have considered the issue are split on whether a plaintiff can recover punitive damages in an FLSA anti-retaliation claim. Compare Travis, 921 F.2d at 111-12 (punitive damages are available in an FLSA anti-retaliation claim), with Snapp v. Unlimited Concepts, Inc., 208 F.3d 928, 933-35 (11th Cir.2000) (punitive damages are not available in an FLSA anti-retaliation claim). The Fifth Circuit, however, has yet to address whether punitive damages are available under an anti-retaliation claim brought pursuant to the FLSA.
Just as it held with respect to emotional distress damages, the Fifth Circuit in Dean held that punitive damages are unavailable under the ADEA. 559 F.2d at 1038. As discussed above, because the ADEA and FLSA must be interpreted consistently with respect to remedies, see Lubke, 455 F.3d at 499; Johnson, 473 F.3d at 222, this Court must hold that punitive damages are not recoverable in an anti-retaliation claim brought under the FLSA.”
Click Douglas v. Mission Chevrolet to read the entire opinion.