Naturally, an employee who is to testify in a FLSA action cannot be retaliated against.  Does that protection extend to someone who makes it known that they want to join a collective FLSA action?  Or, alternatively, that he was a possible class member.  And then, the employer would not allow the employee to work at an affiliated facility.  Is that “retaliation?”  The Third Circuit seems to think that it is.  The case is entitled Uronis v. Cabot Oil & Gas Corp., and issued from the Third Circuit Court of Appeals.

A plaintiff filed a collective action against several corporate entities, asserting joint employer status and a failure to pay overtime.  He claimed that as he was employed by the two other entities, he was therefore jointly employed by Cabot as well.  He then applied for a position with a subsidiary of Cabot and was turned away because of his involvement in the FLSA case.  He then signed an opt-in form on the overtime case and communicated with the lead plaintiff regarding his testifying there.  He had not told anyone at Cabot that he intended to testify.  He then filed his own collective action, alleging retaliation in that he was “about to testify” in the first case.  The lower court dismissed the case, concluding that the plaintiff had not pled protected conduct under Section 215(a)(3).

The district court believed the plaintiff was not “about to testify” because he had not claimed that he was going to testify.  As the plaintiff had not alleged that he had been served a Subpoena or would otherwise be called upon to testify, the protection did not apply.  The Third Circuit disagreed.  The appellate Court refused to interpret the anti-retaliation provision in such a “narrow, grudging manner.”  The Court cited with approval US Supreme Court precedent that held that an oral complaint can be protected activity, despite language in the statute indicating that a complaint must be “filed,” which would suggest a writing was needed.

The Third Circuit also noted that it had, thirty years before, interpreted Section 215 to include an allegation that the employer “thought” or “believed” that an employee had filed a complaint, whether or not the employee actually had done so.  The Court would not read the protection as narrowly as protecting only those complaints that had been actually filed.  The Court explicitly stated that if “employers can retaliate against an employee because the employer believes the employee has or will soon file a consent to join an FLSA collective action, this enforcement mechanism – and employee protection – will be gutted.”  The Court warned that this new protection is not absolute and stated that the employer must be aware of the conduct or have reasonable evidence to show such awareness.  In any event, the Court held that when “an employee testifies under Section [2]15(a)(3) when the employee files a consent to join an FLSA collective action.”

The Takeaway

This expansion of the retaliation provision is troubling because it is a murky, vague expansion and lends itself to much interpretation or mis-interpretation.  From now on, in this Circuit, the word “testify” means the submission of an opt-in form to join a collective action.  The employer response, however, remains the same—always have an objective, business-based, verifiable reason for taking an adverse action against an employee.

That is the employer’s downside protection…