Best Ohio Wage and Hour Attorney Answer: Can my boss fire me if I complain about wage violations under the FLSA? Am I protected by law if I am complaining about how my employer is paying other employees? Am I entitled to overtime pay?
The employment attorneys at Spitz, The Employee’s Law Firm, are committed to representing employees who have been wrongfully denied lawfully earned overtime compensation under the Fair Labor Standards Act (“FLSA“). The FLSA requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus time and one-half their regular hourly rates for hours worked beyond 40 per week. Important to the legal issue of the day, the FLSA also protects those employees who complain to their manager and supervisors about actual or perceived wage and hour violations. This means that an employee is protected against retaliation , including from wrongful termination, for reporting suspected, good faith violations of the FLSA including the failure to pay overtime compensation or minimum wage violations, even if the employee ends up being wrong.
Our overtime law lawyers have previously written about the United States Supreme Court‘s decision in Kasten v. Saint-Gobain Performance Plastics Corp, where the Supreme Court held that the employee’s oral complaints about potential FLSA violations were sufficient and that such complaints do not have to be in writing. (See Retaliation Under The Fair Labor Standards Act – Oral Complaints to an Employer Are Sufficient). This decision broadened the reach of FLSA’s retaliation provision to ensure that employees receive proper protection under the law for complaints about potential wage and hour violations meaning that an employee is not required to prove that an actual wage and hour violation occurred; rather the employee only simply has to be believe that one occurred (or was occurring) when he/she complained.
On December 14, 2015, the Ninth Circuit Court of Appeal, in Rosenfield v. GlobalTranz Enterprises, Inc., broadened the Kasten decision even further by applying the “fair notice” test to a Director of Human Resources who throughout her employment reported to her employer that the company was non-compliant with the FLSA, and held that the employee sufficiently made a complaint that was protected under the FLSA. In its opening summary, the Court held:
The panel reversed the district court’s summary judgment in favor of the employer on an employee’s claim under the anti-retaliation provision of the Fair Labor Standards Act.
Applying the “fair notice” test for deciding whether the employee had “filed any complaint,” the panel considered whether, pursuant to Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011), the complaint was “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.” The panel held that a complaining employee’s position is an important part of the “context” that the factfinder must consider, but the panel declined to formulate or adopt a special bright-line rule to apply when considering
whether a manager has “filed any complaint” within the meaning of 29 U.S.C. § 215(a)(3).
The panel held that a jury reasonably could find that the employee filed a complaint. It therefore reversed the district court’s summary judgment and remanded for further proceedings.
The Court then followed this up by holding:
In Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 131 S. Ct. 1325, 1335 (2011), the Supreme Court established a “fair notice” test for deciding whether an employee has “filed any complaint” under the anti-retaliation provision of the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 215(a)(3): “[A] 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.” We hold that a complaining employee’s position as a manager is an important part of the “context” that the fact-finder must consider. A reasonable employer would understand many actions taken by a non-managerial employee differently than it would understand the same actions taken by a manager. But we decline to formulate or adopt a special bright-line rule to apply when considering whether a manager has “filed any complaint” within the meaning of § 215(a)(3). We further hold that, on this record and applying Kasten’s “fair notice” rule, a jury reasonably could find that Plaintiff Alla Josephine Rosenfield, a managerial employee, filed such a complaint. Accordingly, we reverse the district court’s grant of summary judgment to the employer and remand for further proceedings.
What makes Rosenfield a more unique case is that the employee was a Director of Human Resources, not a lower-level employee who was actually being denied overtime compensation or not being paid minimum wage. Rather, Rosenfield was a management employee who complained about the employer, GlobalTranz, violating the FLSA in regards to other employees. On May 31, 2011, GlobalTranz fired Rosenfield. She then filed a lawsuit, alleging that GlobalTranz and its executives had violated the FLSA’s anti-retaliation provision, 29 U.S.C. § 215(a)(3), and an Arizona state law. Rosenfield claimed that GlobalTranz fired her for engaging in protected activity, that is, for complaining to other managers and to executives that GlobalTranz was failing to comply with the FLSA.
The district court granted summary judgment against Rosenfield, finding that while she definitely advocated on behalf of other GlobalTranz employees during her employment, Rosenfield herself had not “filed any complaint” that would have protected her under the FLSA. The Ninth Circuit Court of Appeals disagreed. Specifically, in looking at the fact that Rosenfield was a “manager” the Court applied Kasten and determined that even as a “manager” Rosenfield’s conduct was still a “complaint” under the FLSA, and therefore Kasten was applicable to “manager” complaints. The Court explained as follows:
We decline to refine the Supreme Court’s general formulation of the rule when applied to complaints by a manager. Because Kasten requires consideration of the
content and context of an alleged FLSA complaint, the question of fair notice must be resolved on a case-by-case basis. An employee’s managerial position is only one consideration, and the Supreme Court’s general rule provides adequate guidance for considering that fact. Moreover, an employee’s status as a “manager” is not entirely binary. A different perspective on fair notice may apply as between a first-level manager who is responsible for overseeing day-today operations and a high-level manager who is responsible for ensuring the company’s compliance with the FLSA. Refining the general rule to focus on only one specific factual element may obscure important nuances.
As such, the Court rejected the notion that a different test should apply to alleged “manager” FLSA complaints, and instead, held that Kasten’s “fair notice” test should apply regardless of whether the complaining employee was a “manager” or not. From the there, the Court applied the Kasten test to the facts in Rosenfield’s case, which included the following:
Plaintiff complained orally to management on at least eight occasions that the company was not in compliance with the FLSA. She provided copies of the statute on some occasions, along with specific assertions concerning misclassification of a large number of employees and requests for changes in payment of wages for those employees. Additionally, Plaintiff raised the subject of FLSA violations in at least 27 weekly and monthly reports to her
Plaintiff’s boss disapproved of Plaintiff’s complaints and expressed frustration with her actions. In March 2011, he nevertheless agreed to take some actions aimed at addressing Plaintiff’s FLSA complaints. But “he made clear to [Plaintiff] . . . that he did not want or expect [her] to determine whether the company was actually implementing” those changes. Plaintiff later discovered that, in her view, the company was not implementing the changes. On May 26, 2011, she documented the company’s non-compliance with the FLSA and complained to her boss. Five days later, her boss fired her.
Based on these facts, the Court held that Rosenfield sufficiently made a “complaint” under the FLSA that protected her from retaliation from her employer. The Court concluded its opinion with the following holding:
Viewing the evidence in the light most favorable to Plaintiff, the company understood these interactions to be complaints on the subject of FLSA compliance. That is, her superiors actually understood (or reasonably should have understood) that Plaintiff was asserting rights protected by the FLSA and was calling for their protection. Because FLSA compliance was not part of Plaintiff’s job portfolio, her advocacy for the rights of employees to be paid in accordance with the FLSA could not reasonably have been understood (if it was) merely to be a part of Plaintiff’s regular duties.
In the end, the Rosenfield decision can be viewed as an employee-favorable expansion of the Kasten, especially for managerial employees whose FLSA complaints may not be about conduct against them specifically, but simply regarding suspected FLSA violations taking place in the company against other employees.
If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws or you are an nonexempt employee that has been misclassified as exempt or independent contractor, contact the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. The wage and hour lawyers at Spitz, The Employee’s Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.
The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.