The Supreme Court recently ruled that the FLSA’s anti-retaliation provision protects oral complaints regarding issues “under or related to [the FLSA].” 29 U.S.C. § 215(a)(3). However, the Court of Appeals for the Eighth Circuit recently affirmed a District Court’s ruling that such anti-retaliation protections did not extend to a complaint about an employer’s policy regarding paid time off around the holidays as such complaint was not connected to rights under the FLSA. Shrable v. Eaton Corp., 2012 U.S. App. LEXIS 20591 (8th Cir. 2012)
In Shrable plaintiff complained at a company meeting about several changes to employer policy, including the elimination of extended paid lunches around Thanksgiving and Christmas, by remarking “[D]on't you think this is why we have bad attitudes?” He argued that a complaint about the change to the paid time policy was protected under the FLSA because “ the schedule changes ‘would affect overtime under the FLSA.’” The Court rejected such assertion, observing that “[b]ona fide meal periods are not worktime, and thus the elimination of a half hour of paid lunch would have no effect on overtime.” Id. quoting 29 C.F.R. § 785.19(a). Even if such activity could be considered protected, the Court further ruled that Shrable “failed to show a causal connection between his complaint about holiday meal time and his termination six months later.”
While the Shrable court wisely limits FLSA protected activity to statements and matters going to the statute’s central protections—minimum wage and overtime pay—myriad state laws protect a variety of employee conduct, even when couched in the unpleasant manner of a chronic “complainer.” Employers must assess all internal employee complaints carefully before making employment or other policy decisions to ensure that stakeholders are aware of potential retaliation claims and related legal and factual defenses.