IS THIS FLSA RETALIATION?
(By Guest Contributor) When a GS-6 employee complained to her supervisor that she was not getting paid for all the overtime she was working, the supervisor stopped giving her any overtime for a month. On her normal schedule, she would have worked 10 hours of overtime in the month. Can she claim she is the victim of FLSA retaliation if she only made an oral mention of her dissatisfaction just to her supervisor, not HR or via a grievance?
The short answer seems to be yes, as a recent decision from the Second Circuit of the U.S. Court of Appeals recently confirmed. Back in April, the 2nd Circuit Court of Appeals issued a decision finding that the anti-retaliation provision of the FLSA protects employees who have raised concerns about their pay, even if those concerns were raised orally and to their supervisors (as opposed to filing a grievance or lawsuit). Greathouse v. JHS Security, Inc. The Supreme Court, in Kasten v. Saint-Gobain Performance Plastics Corp. (2011), had previously held that oral complaints can be protected activity under the Statute. The 2nd Circuit (joining most other circuits) took that decision further in that those complaints need not be formally made to government agencies such as the Department of Labor. While this is not binding precedent on arbitrators, it is a pretty good benchmark that none can ignore.
Keep in mind that not every spoken complaint is going to be protected, only those that are “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 [FLSA] and a call for their protection.” Therefore, grumbling to your co-worker likely would not form the basis for a retaliation claim should they subsequently face discriminatory treatment. However, under recent holdings of the various circuits, telling your supervisor that you think you’re not being paid appropriate overtime is protected activity. This is true even if the employee was wrong and had been paid appropriately.
Remember, retaliation does NOT have to rise to the level of termination (in Kasten, the supervisor/owner drew a gun on the employee, so there were clearly other issues going on). Retaliation can involve assigning the employee to less desirable shifts, negative performance appraisals, etc. If an employee has raised issues with respect to their pay, and subsequently faced discriminatory treatment, a retaliation claim should be explored.
In the situation we posed at the outset, the employee could file a grievance claiming FLSA retaliation and ask for back pay, liquidated damages or interest, and attorney fees for the ten hours of overtime she lost.
(The author is a labor and employment attorney and union consultant who has served as the General Counsel for an international union and worked for NTEU as a Negotiator and as an Attorney in the NTEU General Counsel’s Office.)