Retaliation protection for managers
When are managers protected for reporting wage and hour violations?
The Ninth Circuit Court of Appeals recently considered the question of when a managerial employee makes a complaint under the Fair Labor Standards Act. In Rosenfield v. Globaltranz Enters. (9th Cir. Dec. 14, 2015) 2015 U.S. App. LEXIS 21558, the court applied a “fair notice” test to decide whether the employee made a protected complaint under the Act.
In this case, Ms. Rosenfield worked in Human Resources management positions for Globaltranz. Throughout her employment she reported to her superiors that Globaltranz was not compliant with the Fair Labor Standards Act (FLSA), which is the federal law concerning minimum wage and overtime pay. After Globaltranz terminated her, Ms. Rosenfield sued her employer under the anti-retaliation section of the FLSA. The trial court dismissed the case on grounds that, although Ms. Rosenfield advocated on behalf of Globaltranz employees whose FLSA rights she believed were being violated, she did not file a complaint as required by the FLSA.
On appeal, the Ninth Circuit looked at the language of the FLSA and determined that Ms. Rosenfield was covered by the anti-retaliation section because it protects all employees. Next, the court addressed the main issue: the standard for making complaints as applied to managers as compared to non-managerial employees.
The appellate court noted that the FLSA must be interpreted liberally in favor of employees, and that the anti-retaliation section covers the filing of any complaint. On the other hand, an employer must have fair notice that the employee made a complaint that could be subject to a retaliation claim. The U.S. Supreme Court established the following fair notice rule: “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.” (Kasten v. Saint-Gobain Performance Plastics Corp. (2011) 563 U.S. 1, 131 S. Ct. 1325, 1335.)
The Ninth Circuit found that an important part of the context is whether the employee is a manager. That is because employers expect managers to voice work-related concerns and suggest policy changes to their superiors, particularly managers who are responsible for ensuring compliance with the FLSA.
Next, the appellate court applied the fair notice rule to the facts in the case. Because Ms. Rosenfield held managerial positions in Human Resources, reports on her employer’s (non)compliance with employment laws would not be protected complaints. But ensuring compliance with the laws was not her responsibility because her superior considered himself to be solely responsible for compliance and did not appreciate Ms. Rosenfield’s reporting. Nevertheless, on at least eight occasions she complained of non-compliance with the FLSA with specific examples of misclassifications and requests for changes in pay. Ms. Rosenfield also raised these types of issues in 27 written reports to her superiors. Although her boss agreed to take some action, he told Ms. Rosenfield that he did not want or expect her to determine whether Globaltranz was actually implementing changes. After Ms. Rosenfield discovered that her employer was not making the changes, she documented the non-compliance and complained to her boss. Globaltranz fired her five days later.
Based on these facts, the Ninth Circuit concluded that Ms. Rosenfield’s superiors (should have) understood that she was asserting rights protected by the FLSA and calling for their protection. Because FLSA compliance was not part of her job duties, Ms. Rosenfield’s advocacy could not reasonably be understood to be part of her regular duties. Consequently, the court reversed the trial court’s dismissal of the case.