A wage and hour complaint lodged by a human resources director can be “protected activity” under the Fair Labor Standards Act if she is not responsible for compliance with the law, the 9th U.S. Circuit Court of Appeals has ruled.
The director — who was fired for complaining — can continue with her FLSA retaliation claim because her boss insisted that he handle wage and hour compliance, the court held in Rosenfield v. GlobalTranz Enterprises, Inc., No. 13-15292 (9th Cir. Dec. 14 2015)).
Background
Alla Rosenfield worked first as an HR manager and then as an HR director for GlobalTranz Enterprises, Inc., a transportation management services company.
Rosenfield complained repeatedly to her supervisor that the company had misclassified a large number of employees, in violation of the FLSA. Her boss, however, made it clear that he considered himself solely responsible for FLSA compliance and that he did not appreciate her complaints and reports.
After she had lodged numerous complaints, her supervisor eventually agreed to take some remedial action. She soon discovered that he had not remedied the problem so she documented the noncompliance and complained again. He fired her five days later, according to court documents.
Rosenfield sued, alleging that GlobalTranz fired her for complaining about FLSA violations. The law prohibits an employer from firing or discriminating “against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding … or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee[.]”
A district court found that Rosenfield had not stepped out of her role as HR director to make the complaint. (See the full story at Thompson’s HR Compliance Expert for more information on “stepping outside” a role.) Because she had, therefore, not “filed any complaint,” as the law requires, the court granted summary judgment for the employer. Rosenfield appealed.
Appeals Court Weighs in
On appeal, the 9th Circuit said it needed to determine “when a manager, as opposed to a non-managerial employee, has ‘filed any complaint’” under the FLSA. An employer must have “fair notice” that an employee is making a complaint, which the U.S. Supreme Court has interpreted to mean “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.” (Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011))
The employee’s job title and responsibilities — in particular, whether he or she is a manager — form an important part of that “context,” the court said. For example, if an entry-level employee reported that someone is underpaid in violation of the FLSA and requested that the employee be properly compensated, a reasonable employer almost certainly would understand that report as a “complaint,” the appeals court explained.
And because an HR director generally is tasked with employment-related decisions, reports on a company’s compliance with employment-related statutes ordinarily would not put the employer on notice that the manager was filing a complaint within the meaning of the law, the 9th Circuit said. “Critically, however, ensuring compliance with the FLSA was not [Rosenfield’s] responsibility.”
Because FLSA compliance was not part of her job, Rosenfield’s advocacy for the rights of employees could not reasonably have been viewed as part of her regular duties, the court said. The employer should have understood that she was asserting rights protected by the FLSA and calling for their protection, it said, reversing the lower court’s summary judgment and remanding the case for further proceedings.