Does a plaintiff’s allegation that he was about to join a pending Fair Labor Standards Act (FLSA) collective (class) action against his former employer, combined with the employer’s knowledge that he was a potential class member, sufficiently constitute being “about to testify” in an FLSA proceeding, such that the former
Articles Discussing Retaliation Claims Under the FLSA.
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 Expands Prior Interpretation of FLSA’s Anti-Retaliation Provision to Include Internal Complaints to Employer
On April 20, 2015, the U.S. Court of Appeals for the Second Circuit ruled in Greathouse v. JHS Security Inc. that internal complaints to an employer are now protected from retaliation under the Fair Labor Standards Act (“FLSA”). This decision overrules the court’s long-standing precedent that an employee’s complaint must be made to a governmental agency in order to qualify for protection under the FLSA’s anti-retaliation provision. In doing so, the Second Circuit joined the weight of authority from its sister circuits that have already adopted similar broad interpretations of the scope of the FLSA’s anti-retaliation provision.