When do an employee’s complaints about wage and hour issues trigger the retaliation protections of the FLSA?

The Good News: Federal law generally prohibits employers from retaliating against employees for raising questions about wage and hour issues. The anti-retaliation provisions of the Fair Labor Standards Act (“FLSA”), once triggered, are robust and can land an employer in considerable trouble if breached.

The Bad News: Not all employee grievances give rise to this protection. The main difficulty  arises in determining when and how an employee becomes eligible for the protections from employer retaliation under the FLSA. In other words, what actions must an employee take to “trigger” the protection?

The Law: The retaliation protections of the FLSA derive from Section 15(a)(3), which provides that no person may “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 this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.”

The focal point of the provision, and the key to determining whether an employee qualifies for the retaliation protections of the FLSA, is the “filing” of a “complaint.”

As a general matter, a formal, written complaint to the United States Department of Labor about wage and hour issues is the surest way to trigger the anti-retaliation provisions of the FLSA.  Nevertheless, as the U.S. Supreme Court held in Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011), even an oral complaint can qualify as a “complaint” sufficient to trigger the protections of Section 15(a)(3).

However, not every such complaint will be found sufficient to trigger the retaliation protections of the FLSA. According to the U.S. Supreme Court, the phrase “filed any complaint” anticipates that the employee’s complaint possesses a “degree of formality” sufficient to put the employer on notice that the employee is asserting his or her statutory rights.  Kasten, 131 S. Ct. 1334.  Thus, in order to trigger the anti-retaliation provisions of the FLSA, an employee’s complaint must be “sufficiently clear and detailed,” taking the context of the complaint into account, for a reasonable employer to understand it as an “assertion of rights protected by the statute and a call for their protection.” Id. at 1335.

To complicate matters further, the Supreme Court has yet to decide whether a purely internal complaint (i.e. to the employer itself) may qualify for protection under Section 15(a)(3). Nevertheless, the majority of federal circuit courts have found that they may. Although the Third Circuit has yet to decide the question, several district courts within the Third Circuit have followed the majority view and held that an internal complaint may trigger the anti-retaliation provisions of Section 15(a)(3). See Vargas v. Gen. Nutrition Centers, Inc., 2011 WL 43020 (W.D. Pa. Jan. 6, 2011), Chennis v. Communs. Constr. Grp., LLC, 2005 U.S. Dist. Lexis 2274 (E.D. Pa Feb. 17, 2005).

Needless to say, whether an employee’s complaint is sufficient to trigger the FLSA’s anti-retaliation provisions is often a complicated and fact-intensive inquiry.

If you believe you have faced or are facing retaliation from your employer or former employer for complaining about the terms and conditions of your employment, including failure to pay for all hours worked, please contact the Murphy Law Group at 267-273-1054 for a free case consultation.