Authored by Arthur Rooney

The FLSA makes it unlawful for any person “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted . . . any proceeding” for violations of the FLSA.  29 U.S.C. § 215(a)(3).  Accordingly, employees who file lawsuits against their employer are protected by the FLSA’s anti-retaliation provision.  But it is unclear, however, whether “informal complaints” are sufficient to trigger the statute’s protection.

On January 4, 2011, the Eighth Circuit—which has never explicitly decided the issue—refused to do so in a case brought by a former hospital employee against her supervisor and employer.  In Ritchie v. St. Louis Jewish Light, — F.3d —, Case No. 10-1356 (8th Cir. Jan 4, 2011), the plaintiff alleged that her supervisor had instructed her to perform various tasks that required her to work overtime, but that she was not allowed to record overtime.  Nonetheless, the plaintiff recorded overtime and, as a result, was reprimanded by her supervisor.  When she persisted in recording the overtime hours, she was discharged.  She then filed a lawsuit under the FLSA’s anti-retaliation provision claiming that she had been discharged for insisting on recording her overtime work.  The district court granted the defendants’ motion to dismiss, because the court concluded that the plaintiff failed to allege that she had engaged in statutorily protected activity.  The Eighth Circuit agreed.  The Eighth Circuit, however, refused to decide whether “informal complaints” are protected activity under the FLSA.  Instead, the appeals court opined that the plaintiff’s recording of overtime contrary to her supervisor’s instructions was not a “complaint” but “nothing more than mere insubordination.”  Because insubordination is not protected by the FLSA, the Eighth Circuit affirmed the dismissal of the plaintiff’s lawsuit.

Although this decision left the issue unresolved in the Eighth Circuit, it is important for employers to be aware of the law in their Circuit, including at the district court level, before making decisions that may adversely affect employees who have raised internal wage-hour complaints.  Moreover, as illustrated by Ritchie, employees are not immune from discipline for insubordination—even if the insubordination relates to timekeeping and pay issues.