Labor Law - Federal

Editors:
Jeffrey D. Hanslick, Esquire
Traci Daffer Martin, Esquire
Benjamin A. McMillen, Esquire

Eighth Circuit affirms district court's dismissal of a former employee's complaint alleging a violation of the Fair Labor Standards Act ("FLSA"), holding that even if informal complaints to one's employer amount to protected activity that would trigger the anti-retaliation provision of the FLSA, the former employee failed to allege sufficient facts to show she even made such informal complaints.  Thus, there could be no liability under the FLSA.  Ritchie v. St. Louis Jewish Light, No. 10-1356, 2011 WL 9354 (8th Cir. January 4, 2011).
Plaintiff Lisa Richie alleged the defendant hospital terminated her employment in retaliation for her insistence on recording her overtime work.  Specifically, Richie claimed the hospital asked her to perform a particular task and instructed her not to record any overtime.  When Richie recorded the overtime anyway, the hospital terminated her employment.  Richie eventually filed suit, claiming retaliatory discharge under the FLSA.  However, Richie did not allege that she was not paid for the overtime, and her attorney ultimately admitted that Richie had in fact been compensated for all the overtime work she performed.  The district court granted the hospital's motion to dismiss, finding that Richie had failed to state a claim because she did not allege she engaged in statutorily protected activity.  Richie appealed, arguing specifically that informal complaints to an employer (like those she allegedly made) trigger the anti-retaliation protection of the FLSA, and that the hospital retaliated against her for exercising her rights under the FLSA. 
Held:  Affirmed.  In affirming the district court's dismissal, the Eighth Circuit refrained from addressing whether informal complaints are sufficient to trigger the anti-retaliation provision of the FLSA.  Even while assuming informal complaints are sufficient, the court concluded that Richie failed to allege sufficient facts to demonstrate that she had made any such complaints.  In doing so, the court rejected Richie's contention that she gave sufficient notice to her supervisor that she believed his instructions were a violation of the law because she "recorded the overtime hours in writing despite orders not to record them."  The court reasoned that instead of constituting an affirmative complaint that would trigger the anti-retaliation provision of the FLSA, Richie's recording of her overtime could be "nothing more than mere insubordination, she having been instructed to the contrary."  The court agreed with defense counsel's argument that if merely recording one's overtime amounts to a "complaint" that triggers the anti-retaliation provision, an employer would not be able to discipline an employee for working unauthorized overtime so long as the employee recorded the overtime.  Thus, the court concluded that Richie's complaint merely alleged, but did not show, that Richie was entitled to any relief.  As such, the court affirmed the district court's dismissal of Richie's complaint. 


The Missouri Bar Courts Bulletin, 11-Jan