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).

Plaintiff Richard alleged she was terminated for complaining about the receipt of appropriate breaks.  However, she conceded “that the FLSA did not require [Defendant] to provide her with breaks” and there was no evidence in the record that her complaints related to the payment of wages, as opposed to the receipt of breaks.  On these facts, the appeals court confirmed that because Plaintiff “did not assert that any rights protected by the FLSA were being violated, she did not engage in protected activity under the FLSA,” and affirmed summary judgment to the employer.

Analyzing whether an employment action poses a concern under the FLSA’s anti-retaliation provision requires similar analysis as under other employment statutes: 1) whether the employee engaged in protected activity; 2) whether the employee suffered an adverse employment action; and (3) whether facts exist that  support an inference that the adverse action was in response to bona fide protected activity, rather than based on an appropriate business justification.