Third Circuit: Filing Consent to Join a Collective Action Qualifies as Protected Activity Under FLSA

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 September 14, 2022

  

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In Uronis v. Cabot Oil & Gas Corp., the Third Circuit Court of Appeals stated that an employee filing consent to join a collective action qualifies as “testimony,” an activity protected under the under the Fair Labor Standards Act (FLSA). Specifically, the FLSA prohibits discrimination and retaliation against employees for engaging in protected activity. Moreover, this case broadened the definitions of “testify” and “about to testify” under the FLSA.

 

Here, the plaintiff applied for a job with his alleged former employer’s subsidiary. The former employer and subsidiary were aware the employee was a putative member of, and anticipated witness in, the collective action, and that he was about to file his consent to join. The plaintiff claimed that his job application was denied because he was “about to testify.” In fact, the subsidiary sent the employee a text saying that stating that they weren’t hiring any putative members of the collective action “because of” that lawsuit.

 

The court stated that an employee is “about to testify” where an employer anticipates the employee will soon testify, such as in a pending action. Further, filing a consent to join a collective action qualifies as  “testimony.” The court noted that a narrow interpretation of “testimony” or “about to testify” would discourage the use of informal workplace grievance procedures designed to protect employees.

 

Employers should first review with legal counsel whether to take adverse employment actions against employees who may participate in protected claims.

 

Action Items

  1. Have appropriate personnel trained on discipline involving employees engaged in protected activity.
  2. Review adverse employment actions with legal counsel during ongoing claims and lawsuits.
  3. Subscribers can call our HR Hotline at (833) 268-5531 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase