One defense commonly asserted to retaliation claims under the FLSA (and most other anti-retaliation statutes) is whether the complaint or activity allegedly leading to the alleged adverse action constituted “protected activity” under the relevant statute. Seeking to clarify this standard, a Florida District Court Judge found the alleged complaints were not sufficiently specific to constitute “protected activity” under the FLSA. Barquin v. Monty's Sunset, L.L.C., 2013 U.S. Dist. LEXIS 144076 (S.D. Fla. Oct. 2, 2013).
Plaintiffs, servers at defendant’s restaurant, submitted affidavits in opposition to the restaurant’s motion for summary judgment alleging that they were terminated after expressing “confusion in the method of compensation (tips versus hourly wage) and high credit card fees.” The Court ruled that such generalized complaints were insufficiently specific to put the employer on notice that the employees were raising an issue related to the minimum wage and overtime requirements of the FLSA. Separately, the Court analyzed and rejected plaintiffs’ Florida common law claim that the restaurant’s policy of setting maximum gratuities interfered with plaintiffs’ “business relationship” with defendant’s customers. Judge James Lawrence King observed that the “foundation of interference with a business relationship is the existence of an actual business relationship” and ruled that the Plaintiff servers “simply had no business relationship with Defendant's customers.”
The plaintiffs’ bar in litigation-heavy states such as Florida, New York, California and Illinois continues to both push the envelope in seeking to broadly define protected activity and expand the scope of legal theories giving rise to employee protection. The Barquin opinion rejects such efforts, but employers must remain wary of retaliation complaints and new theories and act accordingly in making decisions and setting policies.