Consistent with a recent decision from the Eighth Circuit, the Court of Appeals for the Fifth Circuit recently rejected a Plaintiff’s contention that her termination was related to alleged complaints she made regarding her former employer’s compliance with the FLSA. Lasater v. Tex. A&M University-Commerce, 2012 U.S. App. LEXIS 22118 (5th Cir. 2012).

In Lasater, Plaintiff had served as the University Defendant’s Director of the Office of Financial Aid and Scholarships for a number of years. Following her termination, she alleged she was discharged because, in meeting with an outside auditor, she had complained about the application of the University’s "comp time" policy to a single subordinate, a close friend of hers. The Circuit, observing that meeting with the auditor and responding to questions was part of Lasater’s job as a department head, ruled that this isolated remark was not " evidence of conduct by Lasater that reasonably could or should have been construed or understood by the employer as a positive assertion of rights against [the University] related to the FLSA. At no time in her discussion with [the auditor] did Lasater say anything that would constitute an informal complaint by Lasater on her own behalf or that of her employees against her employer. Nothing in her discussions with Ellison touched on matters outside her duties as department head." Id. at *11-12. Because this complaint fell within the scope of Plaintiff’s normal job duties, it did not constitute the "step outside" of her job role necessary to convert such a complaint to protected activity. Id. at fn. 1. Thus, the Court was not required to analyze whether Plaintiff’s " good faith belief that the employer has committed a FLSA violation" gave rise " to protected activity even though the employer has committed no such violation." Id. at *13. 

Allegations of protected activity made by business unit leaders and human resources professionals often implicate the blurry line between a management team member’s job duties and complaints about the workplace analyzed in Lasater. Employers should always take such complaints seriously, but also should analyze whether the activity is truly protected and if litigation arises assert all appropriate defenses.