Can a company fire someone whom it believes will join a pending wage and hour class action against it?


It depends.

Suppose the company is firing the employee for poor performance, which has nothing to do with the underlying lawsuit that someone else filed. In that case, the termination would not violate the Fair Labor Standard Act’s antiretaliation provision, which makes it unlawful to retaliate against an employee for having testified or who is about to testify in any FLSA-related proceeding.

But what happens if the termination ensues because the employer believes that the employee may join a pending FLSA collective action against the company?

That would violate the FLSA, according to a recent Third Circuit Court of Appeals decision.

The Third Circuit reasoned that “the guiding principle of interpreting [the FLSA’s antiretaliation provision] is to prevent a fear of retaliation from chilling employees’ assertion of FLSA rights.” Thus, the FLSA would “prohibit discrimination based on an employer’s perception that an employee had engaged in protected activity—regardless of whether that perception was mistaken.”

Greenlighting this anticipatory action would only undermine the intent of the FLSA’s antiretaliation provision:

“Such an atmosphere of intimidation is particularly repugnant to the purpose of the FLSA in the context of collective actions…Accordingly, the enforcement mechanism of the collective action depends on employees being—and feeling— protected from retaliation for joining (or being anticipated to join.) If employers can retaliate against an employee because the employer believes the employee has or will soon file a consent to join an FLSA collective action, this enforcement mechanism—and employee protection—will be gutted.”

Again, the FLSA does not automatically bar adverse employment action against an employee who is or might soon be a collective action member. Instead, it bars discrimination against individuals because of their protected activity.

Speaking of protected activity, what’s with so many of your employees wanting to join a union?

And what can proactive non-union employers do to keep their workplace that way?

Who better to help me answer these questions than Jon Hyman? Jon is a shareholder and director at Wickens Herzer Panza in Avon, Ohio. In that capacity, he is a Practice Group Leader of the firm’s Employment & Labor Practice Group and a member of the Firm’s Litigation Department.

Jon will be my guest on Friday, October 14, 2022 at Noon ET, for the next edition of The Employer Handbook Zoom Office Happy Hour: “Unions: Fad or Trend?”

As always, the Zoom is free. All you have to do is click here and register.

“Doing What’s Right – Not Just What’s Legal”
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