— Posts About FLSA

4th Circuit Rules that Internal Complaints are Protected Activities Under FLSA’s Anti-Retaliation Provision

In Minor v. Bostwick Laboratories, Inc., Kathy Minor was hired by Bostwick Laboratories as a medical technologist on December 24, 2007.  She received satisfactory or above average ratings at her only performance review on April 30, 2008, just twelve days before her firing.  On May 6, 2008, Minor and several co-workers met with Bostwick’s chief operating officer, Bill Miller.  The employees called the meeting to report overtime violations to Miller.  Specifically, Minor informed Miller that her supervisor, Dawn Webber, routinely altered employees’ time sheets to eliminate overtime pay.  Miller told the group that he would look into the allegations.  The following Monday, May 12, Bostwick terminated Minor’s employment.  Miller and the HR manager claimed that the reason for Minor’s firing was that there was “too much conflict with [her] supervisors and the relationship just [was not] working.”  Minor filed suit for FLSA retaliation, but the district court granted the defendant’s motion to dismiss.

The Fourth Circuit began its analysis by reviewing last year’s Kasten v. Saint-Gobain Performance Plastics Corp., 131S. Ct. 1325 (2011), in which the Supreme Court held that oral complaints could constitute protected activity under FLSA.  Because FLSA’s purpose required a broad interpretation of the anti-retaliation provision, and because it gave some weight to the positions of the Secretary of Labor and EEOC, the Supreme Court concluded that oral complaints could qualify as protected activity.  The Supreme Court, though, expressly declined to address the question of whether an internal complaint could qualify as protected activity.  This issue had not been previously addressed by the Fourth Circuit.

The Court looked at the language of Section 215(a)(3), specifically its coverage when an employee “filed any complaint,” and found it to be ambiguous here.  Functionally, the Court recognized that failing to protect internal complaints would discourage the use of workplace grievance procedures to secure compliance with FLSA.  And, it could have the perverse result of encouraging employers to fire employees who believe they have been treated illegally before they file a formal complaint.  Thus, the EEOC and Department of Labor consistently advanced the plaintiff’s position.  Accordingly, the Court concluded that the purpose of FLSA required internal complaints to be protected by Section 215(a)(3), joining most of the other circuits.  To guarantee that internal complaints provide sufficient notice to employers, the Court held that an internal complaint must be “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.”  Minor’s complaint met that test, so the Court reversed.

Categories: Judicial Decisions Tags: , , , , ,

US Supreme Court to Decide Important Wage and Hour Case

Yesterday, the Supreme Court of the United States granted a writ of certiorari in Christopher v. SmithKline Beecham Corp.  The Ninth Circuit’s opinion, now on appeal, can be viewed here.  The issue was whether pharmaceutical sales representatives are “outside salesman” as referenced in Section 213(a) of the Fair Labor Standards Act and therefore exempt from legal overtime requirements.  The Ninth Circuit Court of Appeals determined that the salespeople were exempt from overtime, thus refusing to defer to the Department of Labor’s regulations on this issue.

The Supreme Court has granted review on these issues:

“(1) Whether deference is owed to the Secretary of Labor’s interpretation of the Fair Labor Standards Act’s outside sales exemption and related regulations; and (2) whether the Fair Labor Standards Act’s outside sales exemption applies to pharmaceutical sales representatives.”

The petition for certiorari may be viewed here.

Categories: Judicial Decisions Tags: , , , , , , , , ,

Fourth Circuit Rejects FLSA Retaliation Claim for Job Applicant

The Fourth Circuit recently issued a troubling 2-1 decision in Dellinger v. Science Applications International Corp.  The majority (Judges Niemeyer and Keenan) held that under the anti-retaliation provision for the Fair Labor Standards Act (FLSA, the federal wage and hour law), a job applicant cannot sue an employer that refused to hire her solely because she had sued her former employer for wage and hour violations.  Although this conclusion seems contrary to the spirit of FLSA’s protections, the majority reasoned that FLSA only allows suits by an individual against their employer, not prospective employer.  The dissent by Judge King is much more persuasive, arguing that FLSA can be read to cover this situation and that such a reading is in keeping with the recognized need to eliminate retaliation against those who assert their rights under FLSA, Title VII, or other employment laws.

Categories: Judicial Decisions Tags: , , , , , ,

4th Circuit Examines FLSA’s Anti-Retaliation Provision

In Dellinger v. Sci. Applications International Corp., Natalie Dellinger sued her former employer, CACI, Inc., in July 2009 for alleged violations of the FLSA’s minimum wage and overtime provisions.  Around the same time, she applied for a job with Science Applications International Corporation.  In late August 2009, Science Applications offered Dellinger a job, contingent on her passing a drug test, completing specified forms, and verifying and transferring her security clearance.  Dellinger accepted the offer and began the confirmation process.  On the security clearance form, she had to list any pending lawsuits and so listed her FLSA lawsuit against CACI.  Several days after she submitted her form, Science Applications withdrew its offer of employment.  Dellinger filed suit for FLSA retaliation, alleging that the job offer was withdrawn because of her pending lawsuit.  The district court granted the defendant’s motion to dismiss.

FLSA prohibits retaliation, which it defines in relevant part as discrimination “against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter.”  29 U.S.C. § 215(a)(3).  Section 216(b) provides that an employee may file suit against “any employer who violates the provisions of section 215(a)(3)” and can recover “legal or equitable relief . . . including without limitation employment, reinstatement . . . .”  Despite these broad provisions, the Fourth Circuit affirmed the dismissal in a 2-1 decision by Judges Niemeyer and Keenan.

Interpreting this language, the majority focused on the terms employee and employer and then made the logical leap that those terms meant individuals could only sue their employer.  In other words, current or former employers can be sued, but not prospective employers.  The majority relied on two district court opinions for support as no other circuit courts had addressed the issue.  In dissent, Judge King cogently discussed several points that amply rebut the majority’s position: (1) Robinson v. Shell Oil Co., 519 U.S. 337 (1997), in which the Supreme Court unanimously held that former employers can be sued under Title VII’s anti-retaliation provision; (2) the FLSA provision’s use of the broad term “any” repeatedly, indicating wide scope; (3) listed remedies include “employment” and “reinstatement,” and the former only makes sense with prospective employers; (4) many other employment laws (e.g. Title VII, ADEA, OSHA, NLRA) cover prospective employers; (5) the purpose of the act is plainly furthered by protecting prospective employees; and (6) the majority’s decision bucks the Supreme Court’s recent trend of broadly interpreting anti-retaliation provisions (including Thompson and Kasten last year).  Despite the evident correctness of the dissent, this view has not prevailed.  The Circuit denied en banc review in October 2011 and the Supreme Court, somewhat surprisingly, denied certiorari in February 2012.

Categories: Judicial Decisions Tags: , , , ,

Supreme Court Expands Wage and Hour Retaliation Claims

The Supreme Court of the United States ruled in favor of an employee last week in Kasten V. Saint-Gobain Performance Plastics Corp, which involves a retaliation claim based on verbal complaints of wage and hour violations.

The plaintiff, an employee at Saint-Gobain, complained verbally several times about the placement of the time clock at Saint-Gobain being unlawful.  The time clock was placed beyond the area where workers were required to dress in protective clothing thus they were not paid for the time they donned and doffed their protective work gear.  A lower court ruled in a related case that the placement of the time clock was indeed a violation of the Fair Labor Standards Act.  In this case, the Court considered the use of the phrase “filed any complaint” and whether it allowed for a complaint about a violation to be filed orally or if it strictly limited complaints to be filed in writing.  Justice Breyer thoroughly defined the word “file” and “filed” only to conclude that what really mattered was the spirit of the text.  Breyer found that the intended purpose of the FLSA was to protect employees many of which, at the time the law was written, were illiterate and incapable of filing complaints in writing.  The Court concluded that employees may file complaints orally if the complaint is “sufficiently clear and detailed [enough] for a reasonable employer to understand it.”  The Court, however, did not address an equally important issue about whether a complaint must be filed with a government agency, not simply an employer, to fall within the standards of the FLSA anti-retaliation provision.

This case is a partial win for employees, granting them further protection against employment discrimination under the FLSA.  (More coverage here.)

UPDATE: Jonathan Harkavy’s commentary on this case can be found here from his overview of the Supreme Court’s employment law decisions during their 2010 session.

Categories: Judicial Decisions Tags: , , , , , ,

Patterson Harkavy Wins in Fourth Circuit for Underpaid Workers

In Simmons v. United Mortgage and Loan Investment, LLC, the Fourth Circuit ruled for plaintiffs and reversed the district court in this wage and hour case.  The plaintiffs are Charlotte-based Junior Asset Managers for a mortgage company who were not paid overtime even though they worked more than 40 hours per week.  They brought claims under the Fair Labor Standards Act (FLSA) and North Carolina Wage and Hour Act (NCWHA) based on the failure to pay overtime.  The primary issue is whether the plaintiffs will be able to pursue their case as a collective and class action on behalf the other underpaid workers at the company.  The defendants tried to short-circuit the collective/class action process by tendering a limited settlement offer before other workers could be notified of the case.  The Fourth Circuit rejected this tactic, finding the settlement too indefinite to moot the case.  The Court remanded the case to the trial court to consider plaintiff’s motion to certify the collective action and plaintiffs’ amendments to the NCWHA claims.  Ann Groninger, Burton Craige, and Narendra Ghosh are representing the plaintiffs.

More from the opinion below:

Read more…

Categories: Judicial Decisions, News of the Firm Tags: , , , , , , , , , , , , , , , ,

Magistrate Judge Concludes that Smithfield Wage and Hour Collective Action Should Proceed

In this case, plaintiffs are bringing collective action claims under the Fair Labor Standards Act (FLSA) based on the under-payment of wages and overtime at Smithfield Packing’s Tar Heel, North Carolina meat processing facility.  Magistrate Judge Gates issued an opinion last week recommending that defendant’s motion to decertify the FLSA collective action be denied.  If his recommendation is approved by the district judge, the case will proceed to trial as a collective action.  The plaintiffs are represented by several lawyers, including Ann Groninger.

Continue for details from the opinion: Read more…

Categories: Judicial Decisions, Results Tags: , , , , , , , , , ,

Government Enforcing Child Labor and Wage Laws for Farmworkers in North Carolina

The New York Times has this article about the Obama Administration’s effort to enforce the child labor and wage and hour laws on farms, and describes the effort in North Carolina in particular.  The Fair Labor Standards Act (FLSA) contains several exceptions for farmworkers, but sometimes-ignored restrictions of child labor are apparently now being more vigorously enforced.

Categories: General News Tags: , , , , , ,

Ninth Circuit Rejects Tip-Pooling Claims of Servers Making More than Minimum Wage Before Tips

In a case that appears to one of first impression at the federal appellate level, the Ninth Circuit ruled in Cumbie v. Woody Woo, Inc., that there are no tip-pooling claims under the Fair Labor Standards Act (FLSA) for restaurant employees who are paid more than the minimum wage before tips.  FLSA, the federal wage and hour law, regulates how tips can be distributed and/or shared as part of its regulation of the minimum wage.  As restaurants commonly do, servers can be paid a small base amount and make the rest of their wages in tips.  Properly arranged, the tips paid to the servers are a “tip credit” for the employers that combines with the base pay to meet the minimum wage.  An employer can use a “tip pool” as part of its tipping system if it meets two requirements: (1) the employee is fully informed; and (2) the tip pool only includes “other customarily tipped employees.”  Disputes often involve this second requirement, e.g. if tips are shared with managers (who are not customarily tipped).

Reading the FLSA in this way, the Court held that because the servers in this case (who had brought a class and collective action case) were receiving a base pay that was already greater than the minimum wage, the employer was not taking advantage of the “tip credit,” and therefore did not have follow the tip-pooling regulations.  Of course, if the servers’ base pay had been less than minimum wage, the outcome would be entirely different.  (Also note that different analysis may apply under the North Carolina Wage and Hour Act.)

Categories: Judicial Decisions Tags: , , , , , , , , , ,

Reply Brief Filed for Simmons Appeal in Fourth Circuit

In Simmons v. United Mortgage and Loan Investment, LLC, we have filed this reply brief with the Fourth Circuit Court of Appeals in this wage and hour case.  See here for a summary of the case.   Ann Groninger, Burton Craige, and Narendra Ghosh are representing the plaintiffs, who are seeking to remedy the company’s failure to pay overtime to themselves and other Junior Asset Managers.  Here is a summary of our argument to the Court:

Read more…

Categories: News of the Firm Tags: , , , , , , , , , , , ,