Legal Briefing: ‘Role’ Playing and Protected Activity

Most employers know that an employee making complaints related to alleged Fair Labor Standards Act violations has engaged in protected activity. The situation gets complicated when it is not clear if an employee has actually made a protected complaint. Historically, courts have required a manager to “step outside his or her role of representing the company and either file (or threaten to file) an action adverse to the employer, actively assist other employees in asserting FLSA rights, or otherwise engage in activities that reasonably could be perceived as directed toward the assertion of rights protected by the FLSA” before they earned the protection against retaliation. The 9th Circuit Court of Appeals found that a managerial employee can engage in protected activity without “stepping outside her role” or taking “action adverse to the employer.” In Rosenfield v. GlobalTranz Enterprises Inc., the court determined that a company’s head of human resources making internal complaints still qualified as protected activity even though she had not explicitly taken a position adverse to her employer. Applying the “fair notice” standard the U.S. Supreme Court adopted in Kasten v. Saint-Gobain Performance Plastics Corp., the 9th Circuit found that GlobalTranz had received fair notice that its head of HR was engaging in protected activity.Alla Rosenfield v. GlobalTranz Enterprises, et al., case No. 13-15292 (Dec. 14, 2015).

Impact: Following Rosenfield’s interpretation of Kasten, employers must be even more cautious in dealing with reports of possible FLSA violations.

Mark T. Kobata and Marty Denis are partners at the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago. To comment, email editors@workforce.com.