In our last column, we discussed a retaliation case that was unsuccessfully brought under the Family and Medical Leave Act. As we noted then, all of the federal employment laws prohibit employers from retaliating against employees who exercise rights under the laws.
In order to prevail in a retaliation claim, the employee must prove three elements. First, the employee must have engaged in protected conduct. Second, the employee must have suffered adverse action that would deter a reasonable employee from future protected conduct. Finally, the employee must establish that the protected conduct caused the adverse action.
Retaliation claims can be maintained under the Fair Labor Standards Act. The FLSA is a comprehensive wage and hour statute that applies to almost all employers. The two primary focuses of the FLSA are the payment of a minimum wage and the payment of overtime.
With respect to overtime, the general rule is that nonexempt employees are entitled to overtime for every hour worked beyond 40 hours per week. A contract, like a collective bargaining agreement, can make this rule more favorable to employees (for example, providing for two times pay for hours worked on Sundays). However, the employer cannot impose a policy that makes the rule less favorable.
A recent case focused on the first element of a retaliation claim under the FLSA. Was the employee engaged in protected conduct? In the case, an employer adopted a new overtime policy. A manager disagreed with the policy, and while presenting it to the other employees was critical of it. He also attempted to distance himself from the policy by telling employees who had questions to go to Human Resources and not to him.
Eventually, the manager was disciplined, and he brought a retaliation charge under the FLSA. Were his actions protected?
The court answered "no." At no time did the manager claim that the new overtime policy was illegal or that it violated his or the other employees' rights. Rather, he merely expressed his disagreement with it. According to the court, this wasn't protected conduct, and the resulting retaliation claim failed.
Opinions expressed solely are those of the writer. James Jorgensen practices law at Hoeppner Wagner & Evans in Valparaiso.
