Retaliation is one of the most misunderstood concepts in employment law
Like many employment law firms, ours receives frequent calls from people who believe they have been retaliated against by their employers. Almost all have; the operative question, however, is whether they have been subject to unlawful retaliation. While almost every involuntary termination is in some way retaliatory, in that an employee is being fired for having done (or not done) a certain thing (e.g., speaking ill of the boss), only certain types of employment retaliation are unlawful. Generally the scenarios where employees have viable claims are when they are retaliated against for complaining about unlawful harassment, safety issues, or certain types of wage violations. But not all wage complaints trigger retaliation protections. As the recent case Rosenfield v. GlobalTranz Enterprises, Inc., made clear, the specific circumstances of each wage complaint determine whether they will be protected under both federal and state law. In Rosenfield, a human resources manager was fired after repeatedly complaining that her employer was paying its employees in violation of the federal Fair Labor Standards Act (“FLSA”). The FLSA’s retaliation provisions only apply if an employee “filed any complaint” about wage violations. Traditionally, this has only been interpreted to mean initiating lawsuits or formal complaints with administrative agencies such as the federal Department of Labor or the California Division of Labor Standards Enforcement. But in Rosenfield, the U.S. Court of Appeals for the 9th Circuit held that internal complaints about unlawful pay practices can trigger statutory retaliation protections, so long as the employees making the complaints do not have to do so as part of their regular jobs. The case highlights how complicated retaliation issues are and the need for most laypeople to consult experienced counsel if they believe they are dealing with potential retaliation situations.