Does the Law Protect Me if I Speak Up on Behalf of a Co-Worker?

One of the basic principles of employment law is that an employer cannot retaliate against an employee who attempts to exercise his or her rights. For example, if you are entitled to overtime pay under the Fair Labor Standards Act, you cannot be fired or disciplined for raising the issue with your employer, or even filing a formal complaint or lawsuit. The employer can be held separately liable under the FLSA and similar laws for attempting to stop or restrict such “protected activities.”

Judge Rules HR Employee's Termination Not “Retaliation” Under Federal Law

Not every employee action related to the FLSA is by definition a protected activity. A recent decision by a federal judge in Manhattan offers a useful illustration. In this case, a former human resources employee alleged that her termination was retaliation for identifying potential FLSA violations at the company. The judge said that was not a protective activity and dismissed the plaintiff's retaliation complaint.

Here is what allegedly happened, according to the plaintiff's lawsuit. She worked for the defendant as a “senior human resources employee” for about 13 years. During her tenure, she looked into the company's practices for classifying employees for overtime purposes. Some employees are exempt from the overtime requirements of FLSA based on their pay and job duties. The plaintiff believed, based on her investigation, the company had improperly misclassified non-exempt employees as exempt to avoid paying them overtime.

The plaintiff said her supervisors denied that there was a problem and “resisted changing the way it classified employees and continued using the same classification mechanisms” over her objections. At one point, the plaintiff said the company ordered her to fire two employees “because they were working too much overtime.” After she complained about this decision, the plaintiff said the company fired her in retaliation.

The problem, according to the judge, was that retaliation claims typically arise from situations in which an employee asserts his or her own rights under the law. Here, the plaintiff was alleging retaliation based on her asserting someone else's rights, i.e. the employees who were misclassified or terminated for overtime-related reasons. As the judge noted, no federal court in New York has ever read the FLSA as covering a scenario like this one.

Ultimately, the judge here was not willing to break any new ground. He found the employee did not engage in a “protected activity” under the FLSA. To the contrary, not only did she fail to assert any personal rights under the law, she acted as a representative of the company in committing the alleged violations. Even reporting the alleged misclassifications of exempt workers “was part of Plaintiff's job responsibilities,” and did not implicate her personal rights as an employee.

That said, the judge left open the question of whether the company's actions constituted retaliation under the New York Labor Law. The court declined to exercise jurisdiction over that claim, allowing the plaintiff to refile her case in state court. The judge noted, however, that the NYLL “is more broadly worded than the FLSA” and may cover the plaintiff's situation.

Call a New York Employment Lawyer Today

You should never be afraid to assert your legal rights in the workplace. If you are aware of a violation but afraid to speak up for fear of retaliation, you should contact a qualified New York employment attorney right away. Call the Law Offices of Nisar Law Group, P.C., at 646.760.6493 if you need immediate assistance.


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