MINOR V. BOSTWICK LABORATORIES: INTRACOMPANY COMPLAINTS CONSTITUTE PROTECTED ACTIVITY UNDER THE FLSA’S ANTI-RETALIATION PROVISION
In April of 2011, the Supreme Court of the United States issued its opinion in Kasten v. Saint-Gobain Performance Plastics Corp., holding that any employee making an oral complaint which would put an employer on notice of an alleged FLSA violation is enough to trigger the protections provided in the anti-retaliation provision. Click here for our recap of Kasten. The Kasten Court did not directly address the issue of whether an oral complaint within a company could trigger protection under the anti-retaliation provision of the FLSA. This provided some hope for employers, leaving the flexibility to argue that the holding in Kasten still required an external complaint which triggered official proceedings, even if the formality requirements were thrown by the wayside by the Supreme Court’s decision. Recently, in Minor v. Bostwick Laboratories, the Fourth Circuit (which covers West Virginia) seemingly foreclosed that possible argument for courts within its jurisdiction and created an even more permissive standard for triggering the protections of the anti-retaliation provision of the FLSA.
Kathy Minor, the plaintiff and a medical technologist at Bostwick, filed a complaint in the United States District Court for the Eastern District of Virginia alleging that Bostwick discharged her in retaliation for reporting FLSA violations to the company’s chief operating officer. Ms. Minor allegedly alerted the COO that her immediate supervisor had altered several employees’ time sheets to cut overtime hours. The district court followed Fourth Circuit precedent from Ball v. Memphis Bar-B-Q Co., dismissing Minor’s complaint and stating that Minor was not able to avail herself of the protections of the anti-retaliation provision as her complaint within the company did not meet the requirements that the complaint invoke an official proceeding.
In overturning the district court’s decision, the Fourth Circuit rejected the argument made by Bostwick and accepted by the district court that Ball controlled the case, finding that Ball only applied where the protected activity involved giving testimony about an alleged FLSA violation. The rule in such cases remains that the employee must be slated to testify at an official proceeding in order to avail themselves of the protections provided by the anti-retaliation provision.
Instead, the Fourth Circuit found the Supreme Court’s reasoning in Kasten was persuasive and reversed the district court. Specifically, the Fourth Circuit noted the majority in Kasten acknowledged Congress’ purpose in passing the FLSA, that of promoting workplace safety standards, and stated that “limiting the scope of protected activity to written complaints would ‘discourage the use of desirable informal workplace grievance procedures to secure compliance with the FLSA.’” Thus, the Fourth Circuit stated that the “functional considerations” at play in the Supreme Court’s analysis of Kasten, including the aim of the FLSA to ensure minimum labor standards and the Supreme Court’s own mandate that the FLSA must not be interpreted “in a narrow, grudging manner,” should give protection to intracompany complaints under the anti-retaliation provision.
Obviously, employers must be extremely careful in the wake of the Minor decision with regard to taking adverse employment actions against employees who have made internal oral complaints regarding alleged FLSA violations. The relaxed standard means that employer exposure to already rising retaliation claims is higher than ever. However, there may be a glimmer of light at the end of the tunnel. The Fourth Circuit in Minor reiterated that the standard of Kasten requiring “fair notice” is still operative, and any complaints made orally within a company must be “sufficiently clear” in the “light of both content and context” to serve as notice of protected activity. Further, there is still the requirement that “some degree of formality” is required to put the employer on notice. Making sure employees are aware of and utilize internal grievance procedures may help prevent undue exposure to such actions.