Legal

Legal Briefing: ‘Role’ Playing and Protected Activity

By Staff Report

Mar. 2, 2016

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.

What’s New at Workforce.com?

blog workforce

Come see what we’re building in the world of predictive employee scheduling, superior labor insights and next-gen employee apps. We’re on a mission to automate workforce management for hourly employees and bring productivity, optimization and engagement to the frontline.

Book a call
See the software

Related Articles

workforce blog

Compliance

Minimum Wage by State in 2023 – All You Need to Know

Summary Twenty-three states and D.C. raised their minimum wage rates in 2023, effective January 1.  Thr...

federal law, minimum wage, pay rates, state law, wage law compliance

workforce blog

Legal

New Labor Laws Taking Effect in 2023

The new year is fast approaching, and with its arrival comes a host of new labor laws that will impact ...

labor laws, minimum wage, wage and hour law

workforce blog

Legal

Wage and Hour Laws in 2022: What Employers Need to Know

Whether a mom-and-pop shop with a handful of employees or a large corporation staffing thousands, compl...

compliance, wage and hour law