The Lawletter Vol 36 No 9
The antiretaliation provision of the Fair Labor Standards Act ("FLSA") makes it unlawful
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[.]
29 U.S.C. § 215(a)(3) (emphasis added). Whether "filed any complaint" includes complaints made to an employer or whether it is limited to complaints brought before an administrative agency or a court has been the subject of much litigation. In Minor v. Bostwick Laboratories, Inc., No. 10-1258, 2012 WL 251926 (4th Cir. Jan. 27, 2012), the Fourth Circuit Court of Appeals recently joined the majority of circuits that have addressed the issue in holding that intracompany complaints may constitute protected activity within the meaning of § 215(a)(3). See, e.g., Hagan v. Echostar Satellite, LLC, 529 F.3d 617, 626 (5th Cir. 2008); Lambert v. Ackerley, 180 F.3d 997, 1004 (9th Cir. 1999) (en banc); Valerio v. Putnam Assocs., 173 F.3d 35, 43 (1st Cir. 1999); EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989 (6th Cir. 1992); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir. 1989); Brock v. Richardson, 812 F.2d 121, 124-25 (3d Cir. 1987); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir. 1984); Brennan v. Maxey's Yamaha, Inc., 513 F.2d 179, 181 (8th Cir. 1975).
In reaching its conclusion, the Fourth Circuit rejected the employee's argument that the U.S. Supreme Court's decision in Kasten v. Saint‑Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011), compelled a holding that her intracompany complaint was protected under the FLSA. The court observed that the sole issue resolved by the Supreme Court in Kasten was whether an oral complaint could be protected activity under the antiretaliation provision of the FLSA; the Court expressly declined to address whether an intracompany complaint could be protected activity. Likewise, the Fourth Circuit rejected the employer's argument that the court's prior decision in Ball v. Memphis Bar‑B‑Q Co., 228 F.3d 360 (4th Cir. 2000), required a finding that intracompany complaints are not protected activity. Ball was distinguishable on its own terms because it addressed only the "has testified or is about to testify in any such proceeding" clause of § 215(a)(3), not the "filed any complaint" clause under consideration in Minor.
Finding that neither Kasten nor Ball was controlling, the court was left with the rules of statutory construction. Because after employing those rules the court concluded that the "filed any complaint" language was ambiguous as to whether § 215(a)(3) incorporated intracompany complaints, it looked to other interpretive tools, including certain "functional considerations" upon which the Supreme Court based its decision in Kasten. See 131 S. Ct. at 1333. Specifically, the court concluded that because of the remedial purpose of the FLSA "to combat 'labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well‑being of workers[,]'" Minor, 2012 WL 251926, at *7 (quoting 29 U.S.C. § 202(a)), the antiretaliation provision must be interpreted to include intracompany complaints. Protection of intracompany complaints encourages resolution of FLSA violations without resort to drawn-out litigation. Moreover, as stated earlier, the majority of circuits include intracompany complaints within the meaning of protected activity under the "filed any complaint" clause, and both the Secretary of Labor and the EEOC have consistently held that intracompany complaints are included within the meaning of "filed any complaint."
The court cautioned, however, that not "every instance of an employee 'letting off steam' to his employer constitutes protected activity." Id. at *9. In order that the employer have fair notice of the complaint, there must be some degree of formality in the making of the complaint. The plaintiff in Minor alleged that she and several other members of her department had met with the employer's chief operating officer ("COO") for the purpose of informing him that the plaintiff believed that her supervisor had willfully violated the FLSA by routinely altering employees' time sheets to reflect that they had not worked overtime when they had; that the COO had promised to look into the matter; and that she had been fired 12 days later because of too much conflict with her supervisors. The court concluded that these allegations were sufficient to survive a motion to dismiss.