Mostly commonly, people understand that the Fair Labor Standards Act (“FLSA”) protects employees from wage theft by employer who fail to either pay employees minimum wage or properly pay non-exempt employees time and a half for overtime hours worked in a given workweek. (Best Law Read: Can “Independent Contractors” Actually Be Employees Under The FLSA?; Can I be Fired For Clocking Out At The End Of My Shift?; Does Standby Time Count For Overtime Pay Calculations?; Is An Unpaid Internship Legal?). However, much like other employment laws that protect employees, the FLSA also provides protection to employees from retaliation by employers who are upset that such employees exercised their rights under the FLSA. (Best Law Read: Retaliation Is Still Easier To Prove Than Discrimination; What Happens If My Job Retaliates Against Me For My Reporting Wage Violations?; Am I Protected After Reporting Wage Theft Under The FLSA?).
What is a protected activity under the FLSA?
Top Wage Rights Lawyer Answer: Specifically, the FLSA prohibits any form of discrimination by employers against an employee because that employee engaged in protected activity as defined by the statute. 29 U.S.C. § 215(a)(3). Under the FLSA, examples of protected activities are complaining to a manager, employer, or the Department of Labor (“DOL”) about a perceived wage violation; participating in an investigation regarding a potential FLSA wage violation; simply asking for payment of perceived owed wages; refusing to give back wages demanded by the employer; and testifying at trial or other legal proceedings regarding possible wage violations committed by the employer. In today’s wage and hour blog, we are focusing on the FLSA’s protection of employees who have “testified” or are “about to testify” in any FLSA-related proceeding, and specifically if this includes a situation where an employer expects an employee will soon consent to join an FLSA collective action.
This was the primary issue in Uronis v. Cabot Oil & Gas Corp., 49 F.4th 263 (3d Cir. 2022). In this case, Matthew Uronis was a former employee of Cabot Oil & Gas Corporation. Previously, one of his former co-workers filed a putative FLSA collective on behalf of himself and other employees similarly situated action against Cabot and Carrie’s Transport & Rental, LLC, which the lawsuit alleged was a joint employer. The prior lawsuit alleged that these joint employers failed to properly pay overtime to several workers, including Uronis. In order to join the collective action, each employee is required to consent to join – essentially each employee had to opt in the to case. It was undisputed that both Cabot and GDS knew Uronis intended to opt in and would be a witness in that collective overtime pay violation action – but that he had not done so yet.
The United States District Court for the Middle District of Pennsylvania held that 29 U.S.C. § 215(a)(3) requires being scheduled or subpoenaed to testify in order to meet the “about to testify” protection requirements.
Thankfully, the United States Court of Appeals for the Third Circuit disagreed and explained that the protections against retaliation provided by the FLSA are to be interpreted broadly in favor of employees:
As a remedial statute, the FLSA—including Section 15(a)(3)—is broadly construed, and “must not be interpreted or applied in a narrow, grudging manner.” Brock, 812 F.2d at 124 (citation omitted); see also Kasten, 563 U.S. at 7, 131 S.Ct. 1325 (“The [FLSA] protects employees who have ‘filed any complaint,’ 29 U.S.C. § 215(a)(3), and interpretation of this phrase ‘depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis[.]’ ”) (quoting Dolan v. Postal Serv., 546 U.S. 481, 486, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006)). Accordingly, courts, including the United States Supreme Court and this Court, have interpreted Section 15(a)(3) to protect employees engaging in activities not spelled out in the statute.
With both this law and the facts of this case in mind, the United States Court of Appeals for the Third Circuit reversed the District Court’s decision, holding: “If employers can retaliate against an employee because the employer believes the employee has or will soon file a consent to join an FLSA collective action, this enforcement mechanism—and employee protection—will be gutted.”
What is an adverse action under the FLSA?
Best Wage And Hour Attorney Answer: Very simply, any action by the employer or any third party that could dissuade an employee from engaging in a protected activity will by considered an adverse action under the FLSA’s antiretaliation provisions. While the most common examples are wrongful termination, demotion, cut in wages or hours, and failure to promote, in Uronis, the Court was faced with a failure to hire.
Uronis applied for a position with Cabot’s subsidiary, GDS. Once the United States Court of Appeals for the Third Circuit held that Uronis had in fact engaged in a protected activity, the causal connection between that activity and GDS’s refusal to hire him was never really in doubt. You see, a GDS manager sent Uronis a text message stating in writing that even though he was more qualified than the other candidates, Cabot instructed GDS not to hire him or any other potential members of the overtime collective action specifically “because of” that lawsuit. To avoid any room for confusion, the GDS manager’s text provided:
Unfortunately I found out the day after I talked to you that no one who worked for Herb [Swiney, owner of Carrie’s] is supposed to be on a Cabot location. Pretty much because of the lawsuit that’s going on. I know you’re a worker but I can’t do anything to get you into gds (sic). … Maybe once the lawsuit deal dies out it might be a possibility again. I wish I could get you in, believe me you’d be better than some of the guys we’ve been interviewing. Also turning a lot down for the same reasons.
With this evidence in hand on remand, this should be a very clear-cut case against the employers for FLSA retaliation.
What should I do if I was wrongfully fired today after complaining that I was owed overtime pay?
Best Ohio Wage Theft Attorney Answer: Because there is nothing simple about the FLSA, you need to consult an experienced FLSA lawyer – or better yet, an experienced team of FLSA lawyers at the largest employment law firm you can find – because your employer will not be hiring a small firm to fight your claim. Luckily for you, the FLSA team of attorneys at Spitz, The Employee’s Law Firm are here to provide you with a free and confidential initial consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). If you even think that you may be entitled to overtime pay that you are not being paid, call our wage attorneys in Ohio, Michigan and North Carolina now.
The FLSA and retaliation materials provided 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, “How do you calculate overtime pay?”, “Does my job have to pay me time and half when I am on call”, “My paycheck is less than minimum wage” or “What do I do if my manager fired me after I complained about a overtime pay violation”, the your best option is to contact an experienced 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 The Spitz Law Firm, Brian Spitz, or any individual attorney.