Fair notice and not bright line rule to be followed: Ninth Circuit

Fair notice and not bright line rule to be followed: Ninth Circuit

The Ninth Circuit Court of Appeals in Rosenfield v. Globaltranz Enters., No. 13-15292, 2015 U.S. App. LEXIS 21558 has declined to adopt a bright-line rule to assess whether a managerial employee has filed a complaint in accordance with the anti-retaliation provision, § 215(a)(3) of the Fair Labor Standards Act (“FLSA”). This decision majorly highlights a disagreement among various Circuits by opting for a generalized “fair notice” standard ruling, according to which, a complaining employee’s position as a manager is only one contextual element for a fact-finder to consider.

On the other hand, in order to comply with § 215(a)(3), the First, Fifth, Sixth and Tenth Circuit Courts adopted a manager-specific legal standard that requires the employee to step outside his/her role of representing the company and either file (or threaten to file) an action adverse to the employer, or otherwise engage in such activities that reasonably could be perceived as directed towards the assertion of rights protected by the FLSA.

In Rosenfield, a former Director of Human Resources alleged that she was fired for engaging in protected activity, i.e. complaining to other managers and executives about alleged FLSA violations by her employer. The question for determination before the Ninth Circuit now lay as to whether the employees should step out of their roles representing the company while engaging in protected activity under § 215(a)(3).

The majority as well as the dissent agreed that the managers were in a completely different position vis-à-vis employer than the rank-and-file employees. This was so because a report made by an entry level employee about someone being underpaid in violation of the FLSA will be treated as a complaint, while the same report by a manager would be deemed as discharge of his or her duties.

It was thus held that a bright-line rule requiring employee to step out of his or her role was unnecessary, rather a “fair notice” test articulated in Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 [2011] that provides for adequate guidance for considering an employee’s status as a manager as one of several important factors would suffice.

In addition to the above, the Ninth Circuit also stated that applying a narrow rule fails to account for varying levels of managers leading to obscuring of important nuances; whereas a fair notice may apply to both – a first-level manager who is responsible for day-to-day operations as well as a high-level manager who is responsible for ensuring the company’s compliance with the FLSA.

Hence, the fair notice test was applied and the District Court’s decision reversed. The court opined that a reasonable jury could find that the plaintiff’s advocacy reached the requisite degree of formality to constitute the protected activity.

Although the Supreme Court might weigh on the conflicting decisions by the Circuit Courts, seriousness of reports made by managerial or non-managerial employees about FLSA violations remains as important as ever.