Protection for (Some) HR Managers

By Andy Volin

Like most employment statutes, the Fair Labor Standards Act (“FLSA”) prohibits retaliation against employees who file complaints. The Supreme Court ruled in 2011 that this protection even extends to oral complaints at work. Recently, the Ninth Circuit decided that even a management employee in HR could assert retaliation based on a report she filed at work. Rosenfield v. Globaltranz Enterprises, Inc., No. 13-15292 (9th Cir. Dec. 14, 2015).

In this case, an HR Director was fired five days after submitting an internal report about the company’s FLSA non-compliance issues. The Court acknowledged that the plaintiff’s role as a manager was relevant to determining whether her FLSA-related conduct rose to the level that a reasonable employer would regard it as asserting a “complaint” under the statute, rather than just making a report required by her job. Thus, some normal management reporting might not necessarily be protected. In this case, the Director did not have responsibility for FLSA compliance, but she had regularly brought up FLSA problems, which frustrated her boss and led to her termination. These circumstances persuaded the Court that she could bring a retaliation claim based on her internal complaint. The Court’s analysis is troubling because arguably it could be expanded broadly to whistleblower claims by in-house counsel, compliance officers, financial officers, risk managers, and more, and the standard provided by the Court does little to allow employers to predict possible liability.