Employment Law Daily Email to board of directors, letter from attorney don’t ‘remotely’ support FLSA reprisal case
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Thursday, August 30, 2018

Email to board of directors, letter from attorney don’t ‘remotely’ support FLSA reprisal case

By Lisa Milam, J.D.

A salaried employee who contended that a nonprofit association discharged her for exercising her FLSA-protected rights could not “remotely” establish a viable reprisal claim, the Seventh Circuit held. Following a heated altercation with the association president, the employee was told she would be suspended for a week without pay. She sent an email to board members alerting them to the situation, which was followed up by a letter from her attorney. Both asserted generally that the employer “violated federal law” and complained about the association’s leadership and its lack of an HR department to help navigate her dispute with the president. However, no reasonable employer would be put on notice that she was exercising her protected rights under the Act, the appeals court said. Moreover, she was an exempt employee anyhow, and she lacked a good-faith belief that the association violated the FLSA. The appeals court affirmed judgment on the pleadings in the employer’s favor (Sloan v. American Brain Tumor Association, August 27, 2018, Sykes, D.).

Dispute with president. Soon after she was promoted to the position of director of corporate and community engagement, making her an exempt, salaried employee under the FLSA, the employee’s relationship with the association’s president grew contentious. It escalated in a heated encounter during a meeting with the president that ended in the employee being sent home for the day. During the meeting, the employee lamented that the association did not have an HR department that might help to resolve their conflict. The next morning, the employee was told she was suspended for six days without pay. She vehemently objected, and again commented on the lack of an HR department. “I don’t even know if you can do this,” the employee said. “I’m the President [and] CEO[;] I can do whatever I want,” the president replied.

Reaching out to board members. Noting that she was taking a “huge risk” but that she had no choice “in the absence of any HR,” the employee reached out by email to members of the association’s board of directors. She informed them of the threatened suspension which, she surmised, violates federal law, and asked the board to investigate. She then went on to attack the president’s leadership. After receiving no immediate response, she contacted an attorney, who sent a lengthy letter to board members about the possible violations of federal law and also suggesting his client had a potential defamation claim as well. The attorney’s stated hope was that the board members might facilitate a dignified exit for the employee, one that would leave her professional reputation intact. However, the next day, a board member forwarded to the employee a letter from the president informing the board that the employee was no longer working for the association, effective immediately.

Retaliation claim fails. The employee filed suit, asserting she was fired for complaining about the unpaid suspension, in violation of the FLSA. But the district court dismissed her suit, finding her complaints “had nothing to do with rights protected by the FLSA, which regulates minimum wages and maximum hours” and that, as such, a reasonable employer would not be on notice that she was asserting FLSA-protected rights when she voiced her objections. The appeals court agreed.

Generalized protest, no notice. Neither the employee’s email to the board nor her attorney’s letter even referenced the FLSA. They did not refer to her wages and hours or challenge her exempt classification. The employee argued nonetheless that the email and her attorney letter put the employer on notice that she was complaining it had violated her rights under the Act. “We cannot see how—and not only because she was an exempt employee,” the appeals court said.

The email was nothing more than a “highly generalized protest” that the disciplinary action violated federal law. Her attorney offered little more in the way of specifics; his letter merely said his client believed the president’s actions were illegal—not nearly enough to notify a reasonable employer of a possible FLSA violation. Both the email and letter challenged the reasons for the suspension, criticized the president, and lamented the lack of an HR department. Under the circumstances, “no reasonable employer would recognize them as assertions of FLSA-protected rights.” The employee tried to analogize her case to others in which an employee issues a general complaint that an employment practice is unlawful—cases where the employee was deemed to have engaged in FLSA-protected conduct. But in all of those cases, the complaint “was readily recognizable as an objection that a particular employment practice regarding wages or hours was illegal.”

The employee also argued that, taken in the context of her suspension, the email and attorney letter could be construed as complaints that the employer violated 29 C.F.R. § 541.602(b)(5), which explains how to determine whether an employee is exempt. However, this regulatory provision generally allows for unpaid disciplinary suspensions, the appeals court noted.

No good-faith belief. Finally, the appeals court said, the employee’s claim would have failed for the independent reason that her allegations did not plausibly support an inference that she had an objectively reasonable, good-faith belief that her disciplinary suspension violated the Act. And she could not identify a colorable legal basis for holding such a belief.

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