Retaliation

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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…

One defense commonly asserted to retaliation claims under the FLSA (and most other anti-retaliation statutes) is whether the complaint or activity allegedly leading to the alleged adverse action constituted “protected activity” under the relevant statute. Seeking to clarify this standard, a Florida District Court Judge found the alleged complaints were not sufficiently specific to constitute…

Employers often are frustrated by an employee’s characterization in litigation of prior workplace complaints – many times dating back months or even years – as “protected activity” within the meaning of one or more employment statutes.  Distinguishing true “protected activity” from the a mere employee complaint can be a difficult task.  At the initial stage…

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).…

The Supreme Court recently ruled that the FLSA’s anti-retaliation provision protects oral complaints regarding issues “under or related to [the FLSA].” 29 U.S.C. § 215(a)(3). However, the Court of Appeals for the Eighth Circuit recently affirmed a District Court’s ruling that such anti-retaliation protections did not extend to a complaint about an employer’s policy regarding paid time…

As we discussed at the time of enactment, the FLSA was amended in 2010 to require that employers provide non-exempt employees with “a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public” to express breast milk.  In a new decision, a federal judge in…

One oft-invoked disincentive to employers’ litigating FLSA claims (specifically non-class or collective claims) is the statute’s fee shifting provision: when a plaintiff prevails (however nominally), he is entitled to have his “reasonable” attorneys’ fees paid by the employer defendant (however the principle does not apply to a defense victory). In such cases, the individual plaintiff’s damages may…

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…