When Is Doing Your Job also a Form of Protected "Complaint"? -- Rosenfield v. GlobalTranz Enterprises, Inc.
A variety of statutes prohibit retaliation against employees for reporting conduct that they reasonably believe to be illegal -- e.g., potential safety violations, discrimination, underpayment of wages, etc. But what if the employee is a manager whose job it is to ensure compliance with these same statutes? Are such compliance officers legally protected even if the employer believes they are merely being overzealous, inflexible, or otherwise unsatisfactory in how they handle their reporting duties?
In Rosenfield v. GlobalTranz Enterprises, Inc., the Ninth Circuit held that managers may state a claim for retaliation even if making such reports was part of his or her job duties. In particular, Rosenfield was the defendant's HR Director, who was terminated after she "advocated consistently and vigorously on behalf of ... GlobalTranz’s employees whose FLSA rights Plaintiff thought were being violated.” But the lower court nevertheless dismissed her retaliation action on the ground that, due to the nature of her position, her conduct did not constitute a protected "complaint."
The Ninth Circuit reversed. It found that she could state a retaliation claim regardless of her job duties so long as the employer had "fair notice" that she was "making a complaint that could subject [it] to a later claim of retaliation." This standard requires that the employer must be able to "understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection."
In this regard, the court explained how the relationship created by the employee's particular job duties could affect how such an internal "complaint" is interpreted.
If an entry-level employee reported that someone is underpaid in violation of the FLSA and requested that the employee be compensated in compliance with the Act, a reasonable employer almost certainly would understand that report as a “complaint” (depending, of course, on all the circumstances). But if the identical report were made by a manager tasked with ensuring the company’s compliance with the FLSA, a reasonable employer almost certainly would not understand that report as a “complaint” (again, depending on all the circumstances). Rather, the employer naturally would understand the manager’s report as carrying out his or her duties. In short, when determining whether an employee has “filed any complaint,” the employee’s role as a manager often is an important contextual element.
Applying this standard, the Ninth Circuit found that the HR Director's reports of wage violations had to be construed as protected as it was her boss who "considered himself solely responsible for FLSA compliance” and he “did not understand, appreciate, or welcome [Plaintiff’s] bringing to his attention the FLSA violations.”
Beyond the scope of the manager's responsibility, however, the Court declined to specify the dividing line between normal job duties and protected conduct, saying merely that the question would have to be decided "case-by-case."
Under GlobalTranz, a manager who really wishes to make a stand in an area under her responsibility should probably eschew any attempt at diplomacy and just come right out with a documented complaint to the effect that "I am hereby giving 'Fair Notice' that I am asserting rights protected by statute." Her boss may not be thrilled, but at least the protections of the anti-retaliations laws will be clearly triggered.