FLSA Protects Potential Class-Action Plaintiffs from Retaliation



​The 3rd U.S. Circuit Court of Appeals held that an employer retaliated against an employee by not hiring him at its subsidiary, based on the employer's anticipation that he would testify in a Fair Labor Standards Act (FLSA) collective action against the company. The FLSA prohibits discrimination against any employee because such employee has testified or is about to testify in any proceeding under the act.

The employee had previously worked for the employer. In 2019, a former co-worker filed a FLSA collective action lawsuit against the company, alleging that it failed to pay him and similarly situated employees required overtime pay. Because he was a similarly situated employee, the plaintiff was a putative member of the class action, even though he had not yet filed a consent to join the lawsuit.

Later that year, the employee applied to work for a subsidiary of the company. Both the employer and its subsidiary were aware that the employee was a putative member of the class action and a possible witness. A hiring manager sent the employee a text message saying that, although the plaintiff was qualified for the position, the manager had been told not to hire him or any other similarly situated employees "because of that lawsuit."

The employee filed a complaint in federal district court alleging that the employer and its subsidiary had violated the FLSA by refusing to hire him and others because they were "about to testify" in the class-action lawsuit. The employer asked the court to dismiss the case because the employer had not engaged in any protected activity.

The district court granted summary judgment to the employer. In interpreting "about to testify" under the FLSA, the court concluded that the term's unambiguous meaning is that it protects an employee only when the employee "is scheduled to testify in a then-pending FLSA proceeding."

However, the appellate court disagreed, noting that several other courts have broadly construed "about to testify" to include testimony that is impending or anticipated but has not yet been scheduled or subpoenaed. The appellate court said these other courts have held that "about to" comports with dictionary definitions of the term "about," which includes activity that is "reasonably close to, almost, on the verge of" or "intending to do something or close to doing something very soon." Such determinations also comport with the Supreme Court's instructions to interpret the FLSA's protections broadly.

"If employers can retaliate against an employee because the employer believes the employee has or will soon file a consent to join an FLSA collective action, this enforcement mechanism—and employee protection—will be gutted," the court said.

The 3rd Circuit reversed the district court's ruling and remanded the case for further proceedings, saying that the district court had erred in concluding that the FLSA's protection from retaliation for testifying or being about to testify required that an employee had to actually be scheduled or subpoenaed to testify. Such a narrow reading of the law would undermine the intent of the FLSA's anti-retaliation provision, the appellate court determined.

"Retaliation because of an employee's anticipated decision to file a consent to join a collective action creates the same atmosphere of intimidation as does discrimination based on an employee being scheduled or subpoenaed to testify," the court said.

Uronis v. Cabot Oil & Gas Corp., 3rd Cir., No. 21-1874 (Sept. 14, 2022).

Robert S. Teachout, SHRM-SCP, works in the Washington, D.C., area and is a legal editor for Brightmine™ HR & Compliance Centre, a service helping HR build successful and purposeful workplaces.