Fourth Circuit Grapples with Retaliation Under FLSA

Fourth Circuit Grapples with Retaliation Under FLSA

The Supreme Court issued a decision last year stating for the first time that a complaint about wages and hours need not be in writing to invoke the protection of the Fair Labor Standards Act.  Before that, many courts had determined that only complaints made to the Department of Labor triggered anti-retaliation protection.  The Supreme Court’s decision left open the issue whether complaints made only within a company qualified for protection.

The Fourth Circuit returned to this issue last week, and engaged in quite a bit of statutory analysis before concluding that an employee who complained about her supervisor could sue for retaliatory termination.  In Minor v. Bostwick Laboratories, an employee asked for a meeting with the company’s head to inform him that her supervisor regularly altered employees’ timesheets to erase overtime hours. A few days later she was terminated, the employer citing her inability to get along with her supervisors.

The Fourth Circuit now allows the suit to go forward.  The difficulty with the conclusion comes with the language of the depression-era law, which provides for protection for an employee who “files” a complaint.  The Fourth Circuit’s decision makes sense given the purpose of the law.  Employee advocates point out that to deprive employees of protection when they complaint internally gives an incentive to employers to fire complainers before they go to the outside agency.  On the other hand, to require an employee to complaint externally (as with many whistle-blower type claims) encourages people to make complaints to government agencies whenever they see a potential violation.  Employers have a major incentive to avoid problems, if a discussion and investigation could cure the issues before they become a federal case.

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