Employee says ‘Labor Board;’ Court says ‘Retaliation’

By Tony Puckett

When does a retaliation claim under the Fair Labor Standards Act (FLSA) arise? Put another way, does an employee actually have to go to the U.S. Department of Labor before an adverse employment action in order to have a legitimate retaliation claim? Or can an employee merely say to a supervisor that he “could ask the Labor Board” about a wage practice, and still bring a retaliation claim when he is discharged?

Those were the questions the Tenth Circuit Court of Appeals answered recently in Winters v. Bd. of Cty. Comm’rs of Muskogee Cty. The employee, Deputy Sheriff Fred Winters, sued his employer for retaliation after he was discharged for complaining about an FLSA violation.

Employee’s threat of going to Labor Board leads to discharge

Deputy Sheriff Winters was asked to drive a new patrol car from Muskogee County to Tulsa, Oklahoma, to be outfitted with equipment. Although he did not want to do this on his day off, he did so because Sheriff Pearson asked him. On his time sheet, the deputy sheriff requested 2.5 hours of compensatory time off, instead of overtime pay, as public employees are allowed to do. The time sheet was returned to the deputy sheriff stating that his request for compensatory time was denied.

Winters then went to the chief deputy to ask why his compensatory time request was denied. He testified that the chief deputy responded to his question by stating, “per the Sheriff, you’re denied, and what are you going to do about it.” Winters responded by saying that he “could ask the Labor Board.”

Winters alleged the chief deputy then jumped up and told him to stay in his office. The chief deputy returned with Sheriff Pearson and undersheriff. He testified the sheriff said to him, “I’ve given you a $30,000 car and you’re disputing two-and-a-half hours comp time.” The deputy sheriff said he responded that the car was not his and he wanted to know why he was not getting his 2.5 hours of compensatory time. Winters testified Sheriff Pearson asked him what he was going to do about it, to which he replied that he could “ask the Labor Board.” Winters testified the sheriff became “agitated” and told him that his services were no longer needed.

Appeals court responds to plaintiff’s retaliation claim

The initial defense by the county commissioners was that the other three witnesses in the room – Sheriff Pearson, the undersheriff and the chief deputy – all denied that Winters mentioned the Department of Labor. The court dismissed this argument quickly, stating that at the summary judgment stage of the case, the plaintiff’s sworn testimony that he said he could “ask the Labor Board” established a question of fact for a jury to resolve.

The county also argued that Winters could not establish causation, one of the three elements of a retaliation claim in employment law. The three elements an employee has to establish in a retaliation claim are: (1) he engaged in protected activity; (2) he suffered an adverse action; and (3) a causal connection existed between the protected activity and the adverse action. The county’s argument was that Winters lacked causation because Sheriff Pearson had already decided to pay the 2.5 hours of compensatory time before the deputy sheriff was discharged.

The court determined that the county’s argument was not persuasive because Winters was unaware of any decision by the sheriff to pay the compensatory time request. The court pointed out that when a plaintiff acts “on a good faith, although unproven, belief that the employer’s conduct is illegal,” the employee states a valid claim for retaliation that a jury will decide.

The court added that even if Sheriff Pearson had decided to pay the compensatory time request without telling the deputy sheriff, he could still have discharged Winters for complaining about the initial denial of the time request and his threats to go to the Labor Board. The court pointed out that Winters’ evidence was that the sheriff discharged him within three minutes of his statement about asking the Labor Board.

The Tenth Circuit court also held that a verbal complaint internally to a supervisor is sufficient to constitute protected activity for a retaliation claim. This holding was broader than the statutory language in the FLSA, which states that retaliation is unlawful where a plaintiff “filed any complaint or instituted any complaint or caused to be instituted any proceeding under [the FLSA] or has testified or is about to testify in any such proceeding.” 29 U.S.C. Section 215(a)(3). However, the court noted that it had previously held that “the unofficial assertion of rights through complaints at work” also are covered by the FLSA as protected activity for purposes of a retaliation action. This holding is consistent with other federal court cases.

Lessons learned about internal verbal FLSA complaints

The clear lesson for employers of this case is that an internal verbal complaint about a wage practice is sufficient as a basis for a retaliation claim under the FLSA. The employee does not have to actually visit the Department of Labor and sign a complaint. So, when an employee talks about going to the Labor Board, the employer should listen and stop an adverse employment action until a review of the situation can be made. If the wage practice is questionable under the FLSA, the employer should get guidance or pay the employee. Here two-and-a-half hours of compensatory time would have been far less expensive than defending the retaliation suit.

  • Winters v. Bd. of Cty. Comm’rs of Muskogee Cty., 25 WH Cases 2d 1561 (10th Cir. 2015)