Thomas H. Roberts & Associates, P.C.
Virginia's Civil Rights & Personal Injury Law Firm


(804) 783-2000









 

 

Unlawful to Retaliate under FLSA
for protected activity


What's Protected and What's Not
(current 4th Circuit law)

4th Circuit Summary:  The United States Supreme court rejected the limitations imposed on protections under the FLSA by the Fourth Circuit and other courts stating, "We must decide whether the statutory term “filed any complaint” includes oral as well as written complaints within its scope. We conclude that it does." Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1329 (U.S. 2011). As interpreted by the Fourth Circuit Court of appeals, FLSA prohibits retaliation for opting in, filing suit, testimony given or about to be given but not for an employee's voicing of a position on working conditions in opposition to an employer.

Commentary:  The Fourth Circuit's majority's decision was a hard blow to FLSA's central purpose of achieving fair labor standards. The Fourth Circuit's decision undermined FLSA's enforcement scheme by stripping protection from many employees who witness unfair labor practices.

The U.S. Supreme Court did not let that stand too long.

Proving Retaliation

In order to assert a prima facie claim of retaliation under the FLSA, a plaintiff must prove: (1) that he or she engaged in an activity protected by the FLSA; (2) that he or she suffered adverse action by the employer subsequent to or contemporaneous with such protected activity; and (3) a causal connection existed between the employee's activity and the employer's adverse action. See Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir.1997). If the employee establishes a prima facie claim of retaliation, the employer must provide a legitimate reason for the adverse action. Id. Once the employer sets forth a non-discriminatory reason for its adverse reaction, the plaintiff may attempt to demonstrate the pretextual nature of the explanation proffered.

CAUTION:

The Fourth Circuit Court of Appeals has expressly held that the FLSA's anti-retaliation provision does not extend to internal complaints. See Ball v. Memphis Bar-B-Q Co., Inc., 228 F.3d 360, 364 (4th Cir.2000) ("We would be unfaithful to the language of the testimony clause of the FLSA's anti-retaliation provision if we were to expand its applicability to intra-company complaints....").

This limitation has been rejected by the U.S. Supreme Court.

Note:  Against a Government Employer - Provided the complaint concerns a matter of public concern and not merely a private concern, additional protections are afforded to employees under the 1st Amendment to the United States Constitution. 


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 29 USC § 215(a) Prohibited acts; prima facie evidence.

(a) [I]t shall be unlawful for any person—

 (3) to discharge or in any other manner discriminate 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, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee

 

 

Contact:

Thomas H. Roberts, Esq.
Thomas H. Roberts & Associates, P.C.
Virginia Civil Rights Attorneys
105 S. 1st Street
Richmond, Virginia 23219
804) 783-2000
804) 783-2105