Third Circuit Set to Examine the Scope of Anti-Retaliation Protections Afforded Under the FLSA

The Fair Labor Standard Act (“FLSA”) prohibits retaliation against an employee who complains about violations directly to his or her employer or to the U.S. Department of Labor.  To make out a claim, a plaintiff must show (1) participation in a protected activity known to the employer, (2) an employment action disadvantaging the plaintiff (such as termination or failure to hire), and (3) a causal connection between the protected activity and the adverse action.  

Uronis v. Cabot Oil & Gas Corp., a case on appeal before the Third Circuit, presents an interesting question of whether the plaintiff can maintain an FLSA retaliation claim where the plaintiff did not engage in a protected activity but the intent behind the defendants’ adverse action taken against the plaintiff was clearly counter to the purpose of the FLSA’s anti-retaliation protections.  No. 21-1874 (3d Cir. May 4, 2021).  In Uronis, text messages show that the plaintiff’s potential employer decided not to hire him because of his connection to an FLSA collective action lawsuit against the potential employer’s parent company.  However, at the time the potential employer made its decision, the plaintiff had not filed a Consent to Join form (a requirement to participating in a FLSA collective action) nor had he been compelled to participate in the case (i.e. receiving a subpoena to testify at trial).  In response to the potential employer’s decision not to hire him, the plaintiff filed his own lawsuit alleging that the potential employer retaliated against him in violation of the FLSA.  Even though the potential employer’s intent was clear from the text messages, the district court dismissed lawsuit holding that the plaintiff had not engaged in a protected activity at the time the potential employer made the decision not to hire him and therefore could not make out the elements of a claim.  

In Uronis, there is a struggle between the purpose of the FLSA’s anti-retaliation provisions in deterring employers from engaging in intimidating or other conduct meant to deter employees from reporting FLSA violations or participating in actions to redress an employer’s violations and strict adherence to the elements of a retaliation claim.  However, there is at least one circumstance where courts have held that a plaintiff can maintain a retaliation claim even though there was no protected activity.  Those cases involve an employer’s mistaken belief that the employee engaged in a protected activity.  Indeed, the Third Circuit in Brock v. Richardson, 812 F.2d 121 (3d Cir. 1987) noted that “[i]t is evident that the discharge of an employee in the mistaken belief that the employee has engaged in protected activity creates the same atmosphere of intimidation as does the discharge of an employee who did in fact complain of FLSA violations.”  Id. at 125.  As a result, the plaintiff in Brock was able to pursue his claims.  

The Third Circuit’s decision in Uronis could have significant implications.  On the one hand, the court may take a similar approach to the one it took in Brock and find that the defendants’ conduct runs afoul of the intent of the FLSA’s anti-retaliation provisions.  On the other hand, the court could affirm the lower court’s decision that the absence of a protected activity defeats the plaintiff’s claim.  If the court takes the latter approach, employers may be encouraged to act quickly to take or threaten some action(s) against potential members of a collective action before they engage in a protected activity as a way of chilling them from participating.  Such a result may make it more difficult for employees to pursue their claims and hold their employers accountable for their FLSA violations.