Wage and Hour Law Update : Wage & Hour Lawyer & Attorney : Jackson Lewis Law Firm : Minimum Wage, Overtime & Service Contracts

Reflecting the Supreme Court’s 2011 decision regarding the scope of protected activity under the FLSA, the U.S. Department of Labor has issued Fact Sheet 77A, summarizing the Department’s view of the FLSA’s anti-retaliation provision.    Simultaneously, the Department also issued fact sheets addressing retaliation under the FMLA and the Migrant and Seasonal Agricultural Worker Protection Act.

Fact Sheet 77A sets forth the DOL’s assessment of the current legal landscape, including the Kasten decision, holding that the FLSA’s anti-retaliation provision (29 U.S.C. § 215(a)(3)) protects complaining employees “regardless of whether the complaint is made orally or in writing.” The fact sheet goes further, addressing the question the Supreme Court declined to answer in Kasten: namely, whether such written or oral complaints can be protected if made internally, or whether to be protected such complaint must be made formally to the Department of Labor or through a formal filing of a claim (i.e., a lawsuit). In the DOL’s view “most courts have ruled that internal complaints to an employer are also protected.” While this view has been endorsed in multiple forums, notably, courts within the Second Circuit have continued to adhere to the Second Circuit’s 1993 decision in Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir. 1993), holding that a formal complaint is required. Son v. Reina Bijoux, Inc., 2011 U.S. Dist. LEXIS 116417 at * 12-14 (S.D.N.Y. Oct. 7, 2011) citing Lambert. 

The DOL’s fact sheet clarifies the Department’s position, but is not “news” to employers who monitor this space or otherwise educate themselves on these issues. Such employers also know that many state laws, including New York’s retaliation provision as modified by the 2011 Wage Theft Prevention Act, provide for greater protections than those contemplated under federal law and discussed in Fact Sheet 77A.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

29 U.S.C. 215(a)(3) prohibits employer retaliation against an employee for complaints alleging FLSA violations (though the contours of what constitutes a protected complaint are still uncertain).  An unanswered question has been whether the FLSA’s anti-retaliation protections prohibit a prospective employer from considering an applicant’s FLSA activity arising out of previous employment?  Recently, the Court of Appeals for the Fourth Circuit ruled that such protections do not so extend, and that a prospective employer may consider such prior activity in making a hiring decision.  Dellinger v. Sci. Applications Int'l Corp., 2011 U.S. App. LEXIS 16635 (4th Cir. Aug. 12, 2011).

In Dellinger, plaintiff applied for employment with defendant SAIC.  After a contingent offer of employment was made, plaintiff disclosed to SAIC, in connection with the company’s required background check, her pending FLSA lawsuit alleging minimum wage and overtime violations against a previous employer.  The offer of employment subsequently was rescinded by SAIC.  Dellinger sued, alleging that the withdrawal was based on her disclosure of her FLSA activity, and that such an employment decision violated Section 215(a)(3)’s prohibition against retaliation by an employer “against any employee.”

In a two-to-one decision, with a dissent from Circuit Judge Robert King, the Appellate Court affirmed the lower court’s dismissal for failure to state a claim, ruling that the scope of the anti-retaliation provision was defined by the FLSA’s definition of an “employee,” contained in 29 U.S.C. § 203(e)(1).  Analyzing applicant Dellinger’s claims under this definition –“any individual employed by an employer” –the Court held that “Dellinger could only sue [SAIC] if she could show that she was an employee and that Science Applications was her employer.” Dellinger, 2011 U.S. App. LEXIS 16635 at * 8 (emphasis added).  In declining to broaden the scope of “employee” for Dellinger, the Court observed that the “core” purpose of the FLSA was to provide minimum wage and overtime protection to workers, and that permitting FLSA lawsuits from applicants on such a novel theory would impermissibly and inappropriately broaden the statute, even though “‘morally unacceptable retaliatory conduct’ may be involved.”

While Dellinger is a positive development for employers, specifically those located in the Fourth Circuit, making employment decisions based on an applicant’s prior attempt to assert his or her workplace rights and protections (as opposed to based on legitimate business criteria such as the qualifications of the applicant) remains fraught with legal risk. 

For further analysis of this decision by Jackson Lewis see here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

While the US Supreme Court recently has rejected petitions for certiorari on key FLSA exemption issues, the highest court in the United States did this term elect to take up the scope of the statute’s protection of workers who make complaints of FLSA violations to their employer.  As discussed in greater detail here, the Court has ruled that the FLSA’s anti-retaliation provision, 29 U.S.C. § 215(a)(3), applies to oral complaints, as well as written ones.  The Court did not decide the related issue of whether such a complaint is protected when made internally, to the employer, or only where it is made to a public agency (such as the Department of Labor).  This ruling does not provide the clarification most had hoped for, but makes clear that a cautious employer will treat all such complaints by an employee as protected activity under the statute.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On April 22, 2010, a revised version of the Employee Misclassification Prevention Act (“Act”) was introduced. If enacted, the Act, would amend the FLSA and provide a host of new enforcement mechanisms and penalties to combat employer use of the “independent contractor” classification to avoid minimum wage and overtime payment obligations.

If passed the Act would (among other provisions):

• require employers to keep records reflecting the correct status of each worker as an employee or nonemployee (which the FLSA currently does not require);

• require employers to notify workers in writing of their classification as an employee or nonemployee (not required); and

• make it unlawful to retaliate against non-employee workers who advocate for their rights under the Act (as discussed here, the FLSA does not typically protect non-employees from retaliation for seeking alleged unpaid monies).

Due to the federal and state focus on misclassification, all employers should closely review whether contractors are “economically dependent” on the business as well as (1) the degree of control exercised by the employer over the workers; (2) the workers' opportunity for profit or loss and their investment in the business; (3) the degree of skill and independent initiative required to perform the work; (4) the permanence or duration of the working relationship; and (5) the extent to which the work is an integral part of the employer's business.” See, e.g. Velu v. Velocity Express, Inc., 666 F. Supp. 2d 300 (E.D.N.Y. 2009). 

A more detailed Jackson Lewis analysis of the proposed legislation is available here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Jackson Lewis previously advised clients and friends of the Health Care Reform Act’s provision requiring employers to provide employees breaks for breastfeeding: http://www.jacksonlewis.com/legalupdates/article.cfm?aid=2016. (Regulations interpreting such requirements are expected to be issued within the next 6 months.)  Also contained in the over two thousand-page enactment is Section 1558, which adds a new Section 18C to the FLSA.  This new FLSA provision prohibits employers from discriminating or retaliating against any employee who has:

(1) received a credit under section 36B of the Internal Revenue Code of 1986 or a subsidy under section 1402 of this Act; (2) provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of, any provision of this title (or an amendment made by this title); (3) testified or is about to testify in a proceeding concerning such violation; (4) assisted or participated, or is about to assist or participate, in such a proceeding; or (5) objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of this title (or amendment), or any order, rule, regulation, standard, or ban under this title (or amendment).

Aggrieved current or former employees who assert claims under this provision are entitled to a jury trial.

Employers can expect this cause of action for retaliation to be another tool in the arsenal of Plaintiffs’ lawyers.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In today’s world, it is not overly difficult for a prospective employer to learn that an applicant has sued a prior employer under the FLSA. Can the prospective employer decide not to hire based on this information? 

In Dellinger v. Sci. Applications Int'l Corp., 2010 U.S. Dist. LEXIS 32861 (E.D. Va. Apr. 2, 2010), Judge Cacheris of the United States District Court for the Eastern District of Virginia, Alexandria Division, held that an employer could do so, finding that the FLSA’s anti-retaliation provision only protects employees, and not applicants. In reaching its decision, the court relied on two district court cases from other jurisdictions with similar holdings – Harper v. San Luis Valley Regional Medical Center, 848 F.Supp. 911 (D. Colo. 1994) and Glover v. City of North Charleston, 942 F. Supp. 243 (D.S.C. 1996). Judge Cacheris continually referred to the express language of the FLSA and declined to expand the definition of “employee” (meaning one who is “suffered or permitted” to work) to include applicants, observing that the plaintiff had never performed any work for the defendant. 

While no appellate court has ruled on this particular issue, Dellinger supports an employer’s right to disqualify applicants based on previous filings of FLSA suits. 

Of course while such information regarding prospective employees can be easily acquired in the era of the online social network, with extensive information about almost any subject only a click or two away through so-called “open source” searches, there are numerous potential pitfalls including potential FCRA violations and violations of “lawful activities” statutes (such as N.Y. Labor Law § 201-d) in gathering such information.

• Email This
• Print
• Comments
• Trackbacks
• Share Link