A divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit has issued a troubling ruling regarding the scope of anti-retaliation protection under the federal Fair Labor Standards Act (FLSA).
The decision by the appeals court in Rosenfield v. GlobalTranz Enterprises, No. 13-15292 (9th Cir. December 14, 2015), revives a lawsuit brought by a former corporate HR manager who claimed that she was fired for repeatedly warning upper management that the company was not in compliance with its FLSA obligations. By so ruling, the Ninth Circuit rejected the conclusion reached by every other federal appeals court to have considered the issue that the FLSA’s anti-retaliation protection extends to a manager’s actions only where the manager has “stepped outside of his or her role of representing the company,” or has actively assisted other employees in asserting their FLSA rights.
The panel majority concluded that managers should not be subject to a higher standard in order to invoke the FLSA’s anti-retaliation protection. According to the panel, while an individual’s status as a manager may be one factor that should be considered in deciding whether the employer was on “fair notice” that a person is engaging in protected activity, it is not the decisive factor.
A copy of the Ninth Circuit’s decision in Rosenfield is available here.