HR Director's FLSA Complaint Protected From Retaliation by Phillip S. Oberrecht

20-Jan-2016

Should your H.R. Director be an advocate for your employees or a member of the management team?  The Ninth Circuit made the decision easy in a case from Arizona called Rosenfield v. GlobalTranz Enterprises, Inc., filed December 14, 2015.

GlobalTranz Enterprises is a management services transportation company in Arizona which “specializes in brokering truck load and supply chain logistics and warehousing.”  Alla Josephine Rosenfield was the Director of Human Resources and Corporate Training for the company.  Rosenfield was fired by the company after she reported to her boss the misclassification of a large number of employees and requested changes in payment of wages for those employees.  When Rosenfield filed suit for retaliation under the Fair Labor Standards Act, her case was dismissed by the Arizona District Court because she was a member of the management team, simply reporting conditions she discovered that she believed should be remedied by the company.  The Ninth Circuit Court of Appeals reversed the district court’s decision and found that she had not merely been reporting to her boss, but had “filed a complaint” under the anti-retaliation provision of the FLSA, which protected her conduct.

FLSA Anti-Retaliation Provision

The Fair Labor Standards Act prohibits retaliation by making it unlawful for an employer:

To discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee[.]

 

29 U.S.C. § 215(a)(3).  The FLSA is interpreted broadly since it is a remedial statute, resulting in the term “filing of any complaint” encompassing any expression of discontent related to wages and hours which provides adequate notice to the employer that FLSA rights have been asserted and a call has been made for their protection.

Employee Advocacy or Management Guidance

            HR Directors constantly find themselves in the position of monitoring their company’s compliance with FLSA standards.  They watch classifications, payroll and overtime issues to ensure compliance.  The typical HR Director considers him or herself an advocate for the employees, as well as a member of the management team.  As a result, it is natural for the HR Director to monitor FLSA compliance to not only give guidance to company management but also to advocate for lawful pay practices for the company employees.

Fair Notice Rule versus Manager Rule

            Prior to the Rosenfield case, every federal circuit court of appeals that addressed the claim of a manager of retaliation under the FLSA required the manager to “step outside of his or her role as a manager in order to file a complaint.”  (Judge Benson’s dissenting opinion in Rosenfield v. GlobalTranz Enterprises.)  In this case, the Ninth Circuit ruled that it was not necessary for the FLSA anti-retaliation provision to apply for an HR manager to step outside her role as manager to be considered to have filed a complaint with the company.  Instead, the majority applied the “fair notice” rule from the United States Supreme Court case Kasten v. Saint-Gobain Performance Plastics Corp.  The “fair notice” rule simply requires:  “To fall within the scope of the anti-retaliation provision, a complaint 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.”

            In the Rosenfield case, the Ninth Circuit found that such fair notice had been given to GlobalTranz because Rosenfield had “…complained orally to management on at least eight occasions that the company was not in compliance with the FLSA.  She provided copies of the statute on some occasions, along with specific assertions concerning misclassification of a large number of employees and requests for changes in payment of wages for those employees.  Additionally, Plaintiff raised the subject of FLSA violations in at least 27 weekly and monthly reports to her superiors.”  Finally, Rosenfield documented the company’s failure to follow her recommendations on correcting its FLSA violations and complained once again about the matter to her boss, who had disapproved of her complaints and expressed frustration with her actions.  Five days later, he fired her.

            The Ninth Circuit made clear that FLSA compliance was not a part of Rosenfield’s job portfolio and she was not the one in the company to make decisions with respect to FLSA compliance.  Instead, her boss made those decisions.

            The Ninth Circuit decided that under these circumstances, Rosenfield had given fair notice to her boss that she was asserting rights protected by the FLSA and calling for their protection.  She was not merely reporting a problem to management that should be acted upon in the best interests of the company.  She was advocating for the employees whose FLSA rights were being violated.  As a result, the Ninth Circuit decided that Rosenfield was  entitled to the protection of the anti-retaliation provision of the FLSA.

How Did the Ninth Circuit “Get it Right”?

            An HR Director should never have to choose between advocating for employees and providing guidance to management on company compliance with employment laws.  There will always be a natural tension between the HR Director and other company management relative to compliance with all of the complex and interwoven regulatory schemes of the Fair Labor Standards Act, Title VII, Americans with Disabilities Act, Pregnancy Discrimination Act, Family and Medical Leave Act, workers compensation laws, and the myriad other statutory and common law employment laws.  That tension should be the source of honest discourse among company management to ensure that the company complies with the law.  That honest discourse will always benefit the employees and at the same time promote the best interests of the company. 

            Had the Ninth Circuit Court of Appeals decided that an HR Director would only receive the anti-retaliation benefit of the FLSA in the limited circumstance where she stepped outside her role as a manager and merely advocated for employees, HR Directors would be left with the anomalous task of performing their management function of providing guidance to the company on FLSA matters, while not advocating for the employees.  If they carefully crafted their reports to management to ensure they were not advocating for the employees, they would not receive the protection of the anti-retaliation clause.  Why would a company ever want its HR Director to be forced to simply advocate for employees, and not provide guidance for management in order to receive the anti-retaliation protection of the FLSA?  The better policy obviously would eliminate the need for an HR Director to choose between employee advocacy and management guidance.  Hence, when the HR Director gives a clear and detailed explanation of apparent FLSA violations, such expression of FLSA rights and responsibilities should be considered not only guidance for management, but also a complaint on behalf of the employees.  The anti-retaliation protection of the statute should be given to the HR Director.  More importantly, management should take the advice given by the HR Director to heart and correct any FLSA violation found.

Compliance

            In the world of good management, there should be no real tension between the advice given by the HR Director and the decisions made by top management.  Top management in the company should welcome a free and informed discussion of FLSA and other employment law requirements.  Fair and equal treatment of employees should not only be required by the law, but it should drive the policy of your company going forward in the 21st century.  We all know that we are soon again to be confronted with inadequate supplies of well trained, qualified employees.  Good management will always strive to provide employees with strong wage and benefit packages offered in the context of fair and legal employment practices.

            Of course, whenever those free and open discussions among HR personnel and top management lead to honest questions about compliance, the company’s legal team should be engaged for confidential exploration of the legal requirements and solutions.