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Florida’s Third DCA (Once Again) Narrowly Construes Protected Activity Under the FLSA

Defense lawyers should always remove Fair Labor Standards Act cases to federal court, right?

I thought so until last October, when Florida’s Third District Court of Appeals, relying on the U.S. Seventh Circuit Court of Appeals’ decision in Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d 834, 838-40 (7th Cir. 2009), ruled that to “file” a complaint under the FLSA, the employee must complain in writing.  See Alvarado v. Bayshore Grove Mgmt., LLC, 2010 Fla. App. LEXIS 15020 (Fla. 3d DCA 2010).  This decision was at odds with precedent in the U.S. Court of Appeals for the Eleventh Circuit (which covers Florida, Georgia, and Alabama).  I wrote a blog post at the time recommending that defense attorneys reconsider their practice of removing FLSA retaliation cases to federal court.  If the employee did not make a written complaint, the employer was probably better off in state court, where the employer could argue that the employee did not engage in protected activity under the FLSA.  

In March of this year, the United States Supreme Court vacated the Seventh Circuit’s decision in Kasten, holding that oral complaints can suffice under the FLSA.  See Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (U.S. 2011).  I thought that it was back to business as usual, and that defense attorneys should resume their practice of removing FLSA retaliation cases to federal court. 

Now I’m re-thinking that strategy again.  Last week, the Third DCA issued a new decision in Alvarado that acknowledges the Supreme Court’s holding in Kasten, but once again seems to  construe the concept of protected activity under the FLSA more narrowly than Eleventh Circuit precedents.  See Alvarado v. Bayshore Grove Mgmt., LLC, 2011 Fla. App. LEXIS 12136 (Fla. 3d DCA. Aug. 3, 2011).

In Alvarado, the plaintiff described his complaint to his employer as follows:

Just before I was fired on July 11, 2007, I complained to Defendant's management that I was not receiving the correct amount of pay since my time records were altered and/or falsified so as to avoid having to pay me overtime.

The Third DCA held that “[i]t is obvious that this ‘complaint’ fell far short of the degree of specificity and reference to the statute required by the Supreme Court [in Kasten].”  In Kasten, the Supreme Court held that “[t]o fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.”

The Alvarado decision once again seems at odds with Eleventh Circuit precedents and other federal court decisions, under which employees can engage in protected activity by complaining about a practice that is regulated by the FLSA without mentioning the FLSA by name.  See, .e.g,  EEOC v. White & Son Enters., 881 F.2d 1006, 1011-12 (11th Cir. 1989) (finding that employees' informal complaints concerning unequal pay, which did not involve citation of the Equal Pay Act or the FLSA, constituted protected activity); Debrecht v. Osceola County, 243 F. Supp. 2d 1364, 1374 (M.D. Fla. 2003) (finding that employees' informal complaints to employer concerning unpaid overtime constituted protected activity under the FLSA). 

I do not believe the Supreme Court’s decision in Kasten changed this legal standard. But apparently, in the Third District Court of Appeals, an employee must do something more than complain about not receiving overtime pay.  That’s good news for employers, and suggests (once again) that employers may be better off defending FLSA retaliation claims in state court. 



Mind the Gap: A Failure to Pay Wages Does Not Always Violate the FLSA

We recently settled a Fair Labor Standards Act retaliation case on behalf of an employer for a paltry sum that barely allowed the plaintiff’s attorney to cover his costs.  Our client was delighted.  The central problem with plaintiff’s case was that he and his attorney failed to realize from the outset that the plaintiff’s underlying complaint about not being paid for a few hours he worked on a single day – the alleged “protected activity” – was not a complaint about a violation of the FLSA, but was in the nature of a “gap time” claim.

Gap time is working time that is not covered by the overtime provisions of the FLSA because it does not exceed the 40 hour per week threshold, and is not covered by the minimum wage provisions because the employee earns more than minimum wage for the work week.  Gap time may be the subject of a common law claim for breach of contract, but it is not regulated by the FLSA.  See Thrower v. Peach County, 2010 U.S. Dist. LEXIS 116401, 13-14 (M.D. Ga. Nov. 2, 2010) (noting that the “FLSA provides no remedy for a worker who has received at least minimum wage for his or her nonovertime hours, even though they may have been paid less than their actual hourly rate…. Rather, FLSA only governs minimum wage and overtime pay violations.”); Davis v. City of Loganville, 2006 U.S. Dist. LEXIS 20798, 2006 WL 826713, at *9 (M.D. Ga. Mar. 28, 2006) (“[E]mployers are not obligated under the FLSA to compensate employees for ‘gap time,’ as long as the employees receive at least the statutory minimum wage for all nonovertime hours worked.”); Bolick v. Brevard County Sheriff's Dept., 937 F. Supp. 1560, 1568 (M.D. Fla. 1996) (“As a general rule, an employee cannot succeed on a claim under the FLSA if his average wage for a period in which he works no overtime exceeds minimum wage.”) (collecting cases).  See also (Department of Labor opinion letter noting that “[a]s long as overall earnings for the workweek (exclusive of gap time pay) equal or exceed the amount due at minimum wage for all hours worked, including gap time hours, there is no violation of the FLSA in a non-overtime workweek.”). 

Because gap time is not regulated by the FLSA, it follows that an employee’s complaint about not being paid for gap time should not be deemed protected activity under the FLSA.  That is because, although a complaint need not refer to the FLSA by name, it must relate to something regulated by the FLSA.  See Moore v. Freeman, 355 F.3d 558, 562 (6th Cir. 2004); Lambert v. Ackerley, 180 F.3d 997, 1007 (9th Cir. 1999).  As the Supreme Court recently held, the complaint “must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.”  Kasten v. Saint-Gobain Performance Plastics Corp., 2011 U.S. LEXIS 2417, *23 (Mar. 22, 2011) (emphasis supplied).  See also Hardwick v. Complete Skycap Services, Inc., 2007 WL 2050867 (9th Cir. July 11, 2007) (unpublished) (“the complaints must specifically concern FLSA violations”). 

While I have not found any cases that address whether a complaint about not being paid for gap time can constitute protected activity, courts have held that complaints about other pay-related issues that are not regulated by the FLSA do not constitute protected activity.  For example, in Alvarado v. I.G.W.T. Delivery Systems, Inc., 410 F. Supp. 2d 1272 (S.D. Fla. 2006), the court held that the plaintiffs failed to make a case for retaliatory discharge under the FLSA where they alleged they were wrongfully discharged for signing and submitting two letters to the defendant requesting, among other things, an increase in salary.  The court stated: “The letters signed by the Plaintiffs…fail to meet the elements required for a prima facie case under 29 U.S.C. § 215(a)(3). The letters themselves do not appear to clearly assert rights under the statute in that they make no specific mention of overtime pay or invoke the FLSA.”  Id. at 1279. 

Similarly, in Morke v. Archer Daniels Midland Co., 2010 U.S. Dist. LEXIS 57357 (W.D. Wis., June 10, 2010), the plaintiff complained that that defendant was engaged in “payroll manipulation and conspiracy to commit fraud” by shorting plaintiff  “32 hours of vacation pay.”  Id. at  *5.  The court noted that “failure to pay vacation hours is not a violation of the FLSA because payments for vacation times are not regarded as compensation for  working.”  Id. at *5-6 (citing 29 C.F.R. § 778.219). “Thus,” the court held, “plaintiff's complaints about denial of vacation pay were not protected under the FLSA and no FLSA-based retaliation claim can arise from them.” 

The same logic should apply to complaints about an employer’s failure to pay for gap time.  At a pretrial hearing in our recent case, the judge seemed to agree, which is why we were able to settle our client’s case for a nuisance value. 

The lesson here is clear.  The next time you are defending an FLSA claim based on a failure to pay wages, consider whether the employee is complaining about a minimum wage or overtime violation, or, alternatively, whether the employee is really complaining about a failure to pay wages for gap time.  Recognizing this distinction can mean the difference between victory and defeat.


Third DCA Erases $2.6 Million Racial Discrimination and Retaliation Verdict

Florida’s Third District Court of Appeals has reversed the jury verdict and judgment of a Miami-Dade Circuit Court in favor of the plaintiff for nearly $2.6 million.  Ruling that the plaintiff failed to meet the legal requirements for establishing racial discrimination or retaliation under the Florida Civil Rights Act, the appellate court ruled that the trial judge should have directed a verdict in favor of the employer. The case is Sean St. Louis v. Florida International University, Case No. 3D08-2316 (Fla. 3d DCA, March 30, 2011).

The court’s opinion is straightforward and sensible.  The plaintiff could not establish his discrimination claim, the court ruled, because he could not show that similarly situated employees outside his protected class were treated more favorably.  As for the plaintiff’s retaliation claim, the plaintiff produced no evidence that the decision makers knew of his allegations of discrimination, so they could not have retaliated against him.

The Third DCA’s opinion reads like a federal district court’s order granting summary judgment to the employer.  The difference, of course, is that this case went to trial at great expense to the employer.  That’s not surprising, because state court trial judges, unlike their federal counterparts, are generally reluctant to grant motions for summary judgment before trial, or motions for directed verdict at trial.  That’s why defense counsel remove employment cases to federal court, if possible. Here, that wasn’t possible because there were no federal claims, and there was no diversity of citizenship between the parties.  The saving grace for the employer was that cases under the Florida Civil Rights Act are supposed to be analyzed under the same rigorous standards as federal Title VII claims.  And under those standards, the Third DCA ruled that the employer was entitled to a defense verdict, the jury’s feelings to the contrary notwithstanding.




Florida Employment Law 101: The Basics

For Florida employers, or those employers thinking of employing workers in Florida, sometimes it makes sense to go back to the basics.  With that in mind, here's a brief summary of some of the major employment laws in Florida. This list is not exhaustive but does provide a good overview of the law in this area.  My thanks go out to associate Teresa Maestrelli, who put this together.

Wage and Hour Law

Minimum Wage

·                     The minimum wage applies to all employees in the state who are covered by the federal minimum wage. On July 24, 2009 the new Federal minimum wage of $7.25 replaced Florida’s minimum wage.

·                     The definitions of “employer”, “employee”, and “wage” for state purposes are the same as those established under the federal Fair Labor Standards Act (FLSA).

·                     Employees who are not paid the minimum wage may bring a civil action against the employer or any person violating Florida’s minimum wage law.  The state attorney general may also bring an enforcement action to enforce the minimum wage.

Wage for Tipped Employees

·                     Employers of “tipped employees” who meet eligibility requirements for the tip credit under the FLSA may count tips actually received as wages under the FLSA.

 ·                     The employer must pay “tipped employees” a direct wage.  The direct wage is calculated as equal to the minimum wage ($7.25) minus the 2003 tip credit ($3.02), or a direct hourly wage of $4.23 as of July 24, 2009.


·                     Employers are required to post a minimum wage notice in a conspicuous and accessible place in each establishment where employees are employed. This poster requirement is in addition to the federal requirement to post a notice of the federal minimum wage.

Child Labor

·                     Employers who hire minors must display a poster in a conspicuous place on the property or place of employment notifying them of the Child Labor Law.

 ·                     Employers are required to keep waiver authorizations, proof of age documentation, and proof of exemption from minor status for all employees who are under 18.  These records must be maintained for the duration of the minor’s employment.

 ·                     Employers are not required by law to have permission from the parents to employ their minor child.

 ·                     "Work Permits" and/or "Working Papers" are not required in Florida and are not issued by either the schools or any governmental agency in Florida.

 ·                     Minors are limited in the hours they may work to permit them to attend and complete their educational responsibilities.

 ·                     Minors may work no more than 4 consecutive hours without a 30-minute uninterrupted break.

 ·                     Minors are exempt from the hour limitations of the Child Labor Law if they have been married, graduated from an accredited high school or hold a high school equivalency diploma, served in the military, have been authorized by a court order, or been issued a partial waiver by the public school or the Child Labor Program.

 ·                     Minors are limited in the types of occupations they may perform for safety reasons.

 ·                     Minors have the right to request that the Child Labor Office exempt them from parts of the Child Labor Law.

 ·                     Employment of minors in violation of Florida child labor laws may result in fines up to $2,500 per offense and/or be guilty of a second-degree misdemeanor.


Employment Discrimination and Anti-Retaliation Laws

Florida Civil Rights Act

·                     The Act applies to employers with 15 or more employees and prohibits employment discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or marital status.

 ·                     Complaints of discrimination must be filed with the Florida Commission on Human Relations (FCHR) within 365 days of the date of the alleged discriminatory incident.

 ·                     The Act contains an anti-retaliation provision which protects employees who have opposed any unlawful discrimination practice and/or who have made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.

 Whistleblower Protection

·                     Florida’s private sector whistleblower statute protects employees who object to, or refuse to participate in, an activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.

 ·                     Florida’s public sector whistleblower act protects government employees and employees of government contractors who object in specified ways to wrongdoing in the workplace.


Jury Duty

·                     An employer is not required to pay an employee for responding to a jury summons or for serving on a jury.

 ·                     An employer may not discharge, penalize, threaten or otherwise coerce an employee because the employee receives or responds to a summons or serves as a juror.

 Military Law

 ·                     Florida's military affairs law protects the reemployment rights of National Guard members returning from state active duty.  The law prohibits an employer from discharging a returning member for the one-year period following the date the member returns to work, except for cause.

 ·                     At the same time, however, the law provides certain exceptions under which employers are not required to allow such members to return to work.

 ·                     The law applies where the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) does not apply.



The Florida Employer

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Michael W. Casey III, Kevin E. Vance, Mark J. Beutler, and Teresa M. Maestrelli practice labor and employment law, with a particular focus on labor and employment litigation, including Title VII, ADEA, ADA, Florida Civil Rights Act, and whistleblower claims, as well as non-compete litigation, in state and federal trial and appellate courts in Florida and throughout the United States. They also represent employers before the National Labor Relations Board (NLRB), the National Mediation Board (NMB), the U.S. Department of Labor, including the Wage and Hour Division and the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and various state and local agencies, as well as in arbitrations, collective-bargaining negotiations and union representation elections. Hector A. Chichoni practices in the area of US and global immigration law. He chairs Duane Morris's Florida Immigration Practice. The editors of Chambers USA 2010 also selected Mr. Chichoni as a "Leader in the Immigration Field." He has represented a vast number of corporate and individual clients throughout his career ranging from premier US health care organizations, Fortune 100 and Fortune 500 companies, multinational corporations and universities to doctors, professors, researchers and students. His international experience includes handling matters relating to export controls and global corporate compliance and business transactions. He has represented clients in a wide variety of cases before the US Immigration Court.
© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.
The opinions expressed on this blog are those of the author and are not to be construed as legal advice.