Decision: On December 14, 2015, in Rosenfield v. GlobalTranz Enterprises, a divided Ninth Circuit panel clarified the standard for determining whether an employee has “filed any complaint” in order to trigger the anti-retaliation provisions of the Fair Labor Standards Act (FLSA).
The plaintiff in the case had held managerial positions in the defendant’s human resources department before being terminated. She alleged retaliation as a result of her repeated reports that the company was not complying with the FLSA. The district court granted summary judgment for the defendant, holding that, although the plaintiff had “consistently and vigorously” raised the issue of potential FLSA violations, she had never “filed any complaint” for purposes of the FLSA’s anti-retaliation provision.
Ninth Circuit Judges Susan B. Graber and Alex Kozinski reversed the district court decision, applying the “fair notice” test announced by the US Supreme Court in Kasten v. Saint-Gobain Performance Plastics Corp. Under that test, the FLSA’s anti-retaliation provision is triggered when a complaint is “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.” Examining the record, the majority held that a jury could find the plaintiff’s reports sufficient to give fair notice of potential liability for retaliation. Critically, the majority noted that ensuring compliance with FLSA was not part of the plaintiff’s regular duties, so her superiors understood, or should have understood, that she was asserting her rights of anti-retaliation protection under the FLSA.
The dissent (US District Judge Dee V. Benson, sitting by designation), argued that the panel should not have applied the “fair notice” test because Kasten applied only to oral complaints made by non-managerial employees. Instead, following a rule established by sister circuits in cases predating Kasten, Judge Benson stated that it must be shown that the complaining employee stepped outside of his or her normal role to file some type of formal, adversarial complaint, and that there was nothing in the record here to conclude that the plaintiff had done so.
Impact: The majority’s decision explicitly avoids a bright line rule for determining when an employee has “filed any complaint” for FLSA purposes, explaining that the determination must be made on a case-by-case basis. Employers should be careful to avoid the appearance of retaliation when any employee, whether managerial or rank-and-file, raises concerns about FLSA compliance.