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HR Focus: Even Informal Wage and Hour Complaints Can Lead to a Retaliation Claim Under the FLSA

Volume 4, Issue 11
September 9, 2005

The Fair Labor Standards Act ("FLSA"), prohibits employers from retaliating against any employee that "has filed any compliant or instituted or caused to be instituted any proceeding" under the FLSA. The Ninth Circuit Court has long held that the phrase "any complaint" refers not only to formal proceedings filed with the Department of Labor or in a federal court, but also to an employee's informal internal complaint.

For example, in Lambert v. Ackerley, 180 F.3d 997 (9th Cir. 1999), a number of ticket sales agents for the Seattle Supersonics, a professional basketball team, complained internally that a change in policy had resulted in the employer failing to pay them overtime. Approximately two months after agreeing to pay the employees the amount in dispute, the employer discharged those employees that had complained. The court rejected Ackerley's contention that the anti-retaliation provision of the FLSA did not apply to complaints made to an employer. In holding that an internal compliant is entitled to protection, the court stated that one of the purposes of the anti-retaliation provision is "to prevent fear of economic retaliation by an employer against an employee who chose to voice such a grievance." The court noted that "so long as an employee communicates the substance of his allegations to the employer (e.g., that the employer has failed to pay adequate overtime or has failed to pay the minimum wage), he is protected by FLSA." The employee may communicate such allegations orally or in writing, and does not need to refer to the statute by name.

It is important for employers to be aware of the broad coverage of the FLSA's anti-retaliation provisions, particularly when contemplating disciplinary action involving employees who have recently made internal wage and hour complaints.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.