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.
View Complaint
To receive
the benefit of the suit, you must opt in by completing the form and forwarding to this law firm ASAP! The statute of limitations
does not stop running until the opt-in form filed with the court by the law firm.
Opt-In Form in Word
Format
After Opt-In Form - Complete and Forward The
Preliminary Damage Calculation
Form
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
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