Defense lawyers whose clients are sued in Florida state court under the Fair Labor Standards Act typically remove the cases to federal court. And for good reason: employers generally have a better chance of obtaining a summary judgment in federal court.

But defense lawyers may want to rethink this strategy in FLSA retaliation cases in light of a recent decision by the Third District Court of Appeals, Alvarado v. Bayshore Grove Management, LLC, Case No. 3D09-3332 (Fla. 3d DCA, October 6, 2006).

In Alvarado, the plaintiff alleged that he had made oral complaints to his employer about his compensation and that he was terminated as a result in violation of the FLSA's anti-retaliation provision, 29 USC §215(a)(3). This provision makes it unlawful "to 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...." Citing the Seventh Circuit Court of Appeals' decision in Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d 834, 838-40 (7th Cir. 2009), the Third DCA affirmed the trial court's dismissal of the retaliation claim, holding that "the very meaning of the word 'filed' requires that the aggrieved employee at least submit something in writing."

As the Seventh Circuit noted in Kasten, the Eleventh Circuit Court of Appeals reached a different conclusion in EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989). There, the Eleventh Circuit held that given the FLSA's "remedial purpose," an oral complaint is protected activity under the Equal Pay Act (which is part of the FLSA). White & Son is binding on federal district courts in the Eleventh Circuit. See, e.g., Dees v. Rsight, Inc., Case No. 6:05-cv-1923-Orl-DAB, 2006 U.S. Dist. LEXIS 92860 (M.D. Fla. Dec. 22, 2006) (citing White & Son for the proposition that "the Eleventh Circuit has held that unofficial oral complaints by employees to their employer can constitute protected activity under the FLSA").

The lesson of Alvarado and White & Son is clear: Employers who are sued in state court on an FLSA retaliation claim based on an oral complaint should keep the case in state court so they can argue that the complaint was not protected activity. In any trial court within the Third DCA, this argument should be a winner. In trial courts outside the Third DCA, at least the employer has a fighting chance on this argument; Alvarado is not binding but is persuasive authority. Once the case is removed to federal court, White & Son controls, so the employer better be prepared to assert a different defense to the plaintiff's retaliation claim.