HR Director's Lack of Compliance Responsibility Protected Her From Retaliation Under FLSA, 9th Cir. Rules
Author: Michael Cardman, XpertHR Legal Editor
December 15, 2015
HR directors can take comfort in a new federal appeals court ruling that protects them from being fired in retaliation for reporting about their employer's failures to comply with the Fair Labor Standards Act (FLSA) - but only if they are not actually responsible for ensuring compliance with the FLSA.
The FLSA forbids an employer from terminating an employee because he or she "filed any complaint" under the law.
Previously, many courts had set the bar high for HR directors and other management employees to be covered by the FLSA's anti-retaliation provision, saying they must "step outside [their] role of representing the company and either file (or threaten to file) an action adverse to the employer, actively assist other employees in asserting FLSA rights, or otherwise engage in activities that reasonably could be perceived as directed towards the assertion of rights protected by the FLSA."
But in Rosenfield v. Globaltranz Enters., 2015 U.S. App. LEXIS 21558 (9th Cir. 2015), the 9th Circuit Court of Appeals declined to follow this distinction for managers. Instead, it followed a broader 2011 Supreme Court ruling that a complaint simply "must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection."
The plaintiff in the Rosenfield case was an HR director who had:
- Complained orally to management on at least eight occasions that the company was not in compliance with the FLSA;
- Provided copies of the statute on some occasions, along with specific assertions about misclassification of a large number of employees and requests for changes in payment of wages for those employees; and
- Raised the subject of FLSA violations in at least 27 weekly and monthly reports to her superiors.
After she was fired in 2011, she filed a lawsuit alleging that her employer and its executives had violated the FLSA's anti-retaliation provision.
The 9th Circuit ruled in her favor, finding her actions constituted a complaint under the FLSA. The crucial factor for the court was the HR director's lack of responsibility for ensuring FLSA compliance:
Because a person with [the title of HR director or manager] generally is tasked with employment-related decisions, reports on a company's compliance with employment-related statutes ordinarily would not put the employer on notice that the manager was filing a complaint ... Critically, however, ensuring compliance with the FLSA was not Plaintiff's responsibility. Instead, Plaintiff's boss "considered himself solely responsible for FLSA compliance" and "did not understand, appreciate, or welcome [Plaintiff's] bringing to his attention the FLSA violations."
The Rosenfield ruling applies to employers operating in the 9th Circuit, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.