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Total Articles: 14

Texas Court Finds Overtime Restrictions Could Be a Materially Adverse Employment Action in FLSA Retaliation Claim

The Texas Court of Appeals for the Fourteenth District recently reversed and remanded a judgment in favor of an employer on an employee’s claim of retaliation under the Fair Labor Standards Act (FLSA). The court found there to be a genuine issue of material fact as to whether a change in the employer’s stated overtime policy, which was implemented after the employee filed an overtime lawsuit against the employer and applied only to that specific employee, constituted a materially adverse employment action. Tooker v. Alief Independent School District, No. 14-15-00124-CV (January 4, 2017).

Ninth Circuit Affirms: Not All Complaints About Work Policies Relating to Hours “Protected Activity” Under the FLSA

The substantive provisions of the FLSA protect covered non-exempt employees’ right to receive minimum wage and, as applicable, overtime pay. The statute’s anti-retaliation provision is co-extensive: it protects employees from termination or other adverse employment action in response to complaints that those provisions were violated. The FLSA however does not extend anti-retaliation protections to employees making generalized complaints about working conditions. This principle is set forth in a new order from the Court of Appeals for the Ninth Circuit’ affirming a Nevada federal court’s prior ruling. Richard v. Carson Tahoe Regional Healthcare, 2016 U.S. App. LEXIS 3932 (9th Cir. 2016).

Is a Threat to Reduce Pay Enough to Establish Actionable Employment Retaliation?

The question of whether a threat to reduce pay constitutes an adverse employment action is before the Fifth Circuit. Last week, a trucking school asked the Fifth Circuit to uphold a trial court decision dismissing the case on summary judgment, in part due to the fact that while the plaintiff alleged that she was threatened with a pay cut, she quit prior to receiving a cut in pay. A reversal of the trial court decision would lead to a significant expansion of the scope of actionable retaliation in the Fifth Circuit and likely beyond.

Second Circuit Extends FLSA Anti-Retaliation Provision to More Oral Complaints

On April 20, the Second Circuit filled a gap left open by the Supreme Court by extending the Fair Labor Standards Act’s (FLSA) anti-retaliation provisions to oral complaints made to an employer (rather than just complaints made to a government agency). In Greathouse v. JHS Security, Inc., the appeals court cited both Supreme Court precedent and EEOC and DOL statutory interpretations to support this broader reading of the FLSA.

Second Circuit Clarifies That FLSA’s Anti-Retaliation Protection Includes Oral Complaints

Greathouse v. JHS Security Inc., No. 12-4521 (2d Cir. Apr. 20, 2015): The Second Circuit Court of Appeals vacated and remanded the Southern District of New York’s decision dismissing an employee’s wage retaliation claim against his employer. In doing so, the Second Circuit held that oral, internal complaints made to an employer are protected from retaliation under the Fair Labor Standards Act (FLSA).

Liquidated Damages for FLSA Retaliation Claims: Appropriate or Not?

In Moore v. Appliance Direct, Inc. (11th Cir., No. 11-15227, 2/13/13), the Eleventh Circuit held that an award of liquidated damages for a retaliation claim under the Fair Labor Standards Act ("FLSA") is discretionary, not mandatory. In March 2008, plaintiffs, delivery truck drivers, filed suit against their employer, Appliance Direct, Inc., and its Chief Executive Officer, Sei Pak, alleging violations of the overtime provisions of the FLSA. Prior to and during the pendency of the overtime lawsuit, Appliance Direct began changing the employment status of its delivery drivers from employees to independent contractors. Although other delivery drivers formerly employed by Appliance Direct received offers to become independent contractors, those delivery drivers involved in the overtime lawsuit did not receive offers and their employment was terminated. As a result, plaintiffs filed a second action alleging that Appliance Direct and Pak violated the anti-retaliation provision of the FLSA by retaliating against them for filing the overtime lawsuit.

Keep Your Ears Peeled: Employment Law Update on the FLSA's "Anti-retaliation" Provision

The Fair Labor Standards Act (FLSA) is a statute of broad application that regulates, among other things, the payment of overtime. It includes an “anti-retaliation” provision, found at 29 USC § 215(a)(3), that prohibits an employer from retaliating against an employee "because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter."

4th Circuit: FLSA Prohibits Retaliation For Internal Complaints

According to the facts described in her complaint, Kathy Minor was hired by Bostwick Laboratiries, Inc. as a medical technologist on December 24, 2007.

ORAL COMPLAINTS CAN PROVIDE BASIS FOR FLSA RETALIATION CLAIM (pdf).

The United States Supreme Court recently ruled that the anti-retaliation provision of the Fair Labor Standards Act (FLSA) extends to an employee’s oral complaints. The anti-retaliation provision, 29 U.S.C. § 215(a)(3), makes it illegal for an employer “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 FLSA]...” (emphasis added). In Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325 (2011), the Court held that the term “any complaint” includes oral and written complaints. The decision in Kasten continues a recent trend of rulings that have expanded employment-related anti-retaliation laws.

U.S. Supreme Court Holds That FLSA Anti-Retaliation Provision Protects Oral Complaints

On March 22, 2011, in a split decision, the U.S. Supreme Court held that oral complaints are protected under the anti-retaliation provision of the Fair Labor Standards Act (FLSA). Kasten v. Saint-Gobain Performance Plastics Corp. Although the Court discussed the validity of oral complaints at length, it refused to address whether the FLSA covers such oral complaints made solely to a private employer instead of a government agency.

Supreme Court Finds Oral Complaints Can Form Basis for FLSA Retaliation Suit (pdf).

On March 22, with Justice Stephen Breyer writing for the 6-2 majority, the U.S. Supreme Court held that an employee may proceed with his retaliation lawsuit brought under the Fair Labor Standards Act (FLSA). According to the high court, the statutory term "filed any complaint" includes oral, as well as written, complaints. This ruling signals yet another expansion of the anti-retaliation laws.

Supreme Court Defines "Complaint" In Significant Wage-Hour Case.

Sometimes cases turn on a single word or phrase, whether those pivotal words are found in a statute, regulation, rule, handbook or an email. It's a rarity that those singular expressions or phrases have as widespread an impact as the words at issue in a Supreme Court decision issued on March 22, 2011. In a 6 -2 ruling (Justice Kagan took no part in the consideration or decision of the case), the Supreme Court clarified the meaning of the words "filed any complaint" from the Fair Labor Standards Act's (FLSA) anti-retaliation provision. Kasten v. Saint-Gobain Performance Plastics Corp.

Another Interesting Development from Last Tuesday - $4 MDV for FLSA Retaliation

While most eyes were turned to the election results last Tuesday night, a former Los Angeles policeman was enjoying a $4 million dollar verdict in his favor, after a jury agreed that he had been fired because of his testimony in a federal wage and hour lawsuit brought against the city by another officer.

Verbal Complaints About Time Clock Not Protected Under Federal Law.

A federal appellate court recently dismissed a lawsuit brought by an employee who claimed that he was fired after he allegedly made verbal complaints regarding the location of the company's time clocks. The court found that the worker could not establish a retaliation claim under the Fair Labor Standards Act (FLSA) because only written complaints are "protected activity" under the federal law.
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