|Jottings By An Employer's Lawyer|
Thursday, June 05, 2008
5th Circuit View on Retaliation Under the FLSA
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.The case reached the Court on an appeal by a discharged employee. The trial court granted a direct following a mistrial. The employee, a supervisor, claimed the protected activity was his passing to the human resources department a question from the technicians he supervised about whether a change in policy that would lead to less overtime was legal. Since he was terminated for the way he handled the implementation the new practice whether that action was "protected activity" was crucial.
The district court made three legal findings before applying them to the facts:
The 5th Circuit, in an opinion joined by one of its newer members, Judge Leslie Southwick, noted that the 2nd Circuit had taken a more restrictive view than the district court did and would not extend FLSA protection to informal complaints. It refused to take that view, instead going with the district court and what it viewed to be the majority rule in other courts. It did note that it was important that the complaint be about the legality of an action.
The Court also accepted the district court's 2nd premise, that the employee must be doing something other than his job, here being an intermediary between his employees and human resources, which was one of the functions of a manager. A different holding would otherwise mean a whole class of employees, managers, hr and legal, would be protected for just doing their job.
The Court found givenn that Hagan could not meet either of the first two principles, it did not need to address the good faith argument and so, in an appropriate act of judicial restraint, it did not.
I don't think this case represents a land mark shift in the 5th Circuit's view of employment cases generally, but I do think it is an indicator that it is not now a court that automatically looks for the most harsh outcome for employees, if in fact it ever was. Although here the employee lost, the standard which the Court articulates for the first time seems to be a clearly correct and mainstream, as well as less employer friendly than at least one of its sister circuits.