Employers Can’t Retaliate For Wage Complaints, Formal or Not.

When an Employee Complains about Wages and Compensation to the Employer, the Employer Cannot Retaliate — Even if the Employee Does Not File a Formal Complaint in a Court or Before an Administrative Agency

The Fourth Circuit Court of Appeals’ new ruling in Jafari v. The Old Dominion Transit Management Company, a/k/a The Greater Richmond Transit Company (GRTC), settled confusion arising from a prior unpublished decision about whether an employee’s complaint to supervisors within his company is activity protected by the anti-retaliation provision of the Fair Labor Standards Act (“FLSA”). The District Court for the Eastern District of Virginia had incorrectly relied upon Whitten v. City of Easely, 62 F. App’x 477 (4th Cir. 2003), which stated that, “the FLSA’s anti-retaliation provision does not extend to internal complaints.” Id. at 480. Instead, the court looked to a new Supreme Court decision, Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011) to  interpret the FLSA’s meaning of the phrase “filed any complaint,” and so reversed the lower court’s dismissal of Jafari’s case.

Emmet Jafari worked as a driver for the Greater Richmond Transit Company (“GRTC”) for nearly two years. He alleged that GRTC retaliated against after he complained about his pay and the company’s management to the Director of Human Resources. GRTC had implemented a new compensation plan and would not answer his questions as to why his salary was inconsistent with the plan even while his performance evaluation rated his work “near perfect.” He also alleged that GRTC reduced some of his responsibilities while increasing others, solicited complaints from clients about him, and then terminated him with a sealed letter.  GRTC’s explanation was that his “supervisory skills ha[d] diminished.”

Jafari filed his claim under the FLSA, and then filed a pro se appeal to the Fourth Circuit before retaining counsel to request the reversal of the District Court’s dismissal. The FLSA’s anti-retaliation provision prohibits firing or discriminating against an employee because of the fact that the employee “filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter […].” 29 U.S.C. §215(a)(3). Jafari’s internal complaint to GRTC’s Director of Human Resources and management personnel was protected activity under §215(a)(3) even without making the additional effort to raise his concerns about compensation prior to his termination with a court or government agency according to the Fourth Circuit.

The court explained that it arrived at its decision by looking to “functional considerations,” of the FLSA, following the lead of the Supreme Court’s recent FLSA jurisprudence in Kasten v. Saint-Gobain Performance Plastics Corp[1]., even while noting that Kasten was not a directly-controlling decision. “Congress intended the anti-retaliation provision to provide broad protection for those who raise concerns about such detrimental conditions,” and “[v]iewing the statute through this lens,” the court concluded that protecting internal company complaints achieved Congress’ purpose in the FLSA.

The Fourth Circuit issued another opinion the same day, Minor v. Bostwick, No. 10-1258[2], setting forth the same new ruling that “intracompany complaints may constitute protected activity” within the FLSA’s anti-retaliation provision.


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