The anti-retaliation provisions of many employment-related statutes protect employees who make claims or otherwise object to illegal practices at work. However, in many jurisdictions, managers and human resources personnel who are responsible for maintaining legal compliance do not receive these protections because they are not actually blowing any sort of whistle – they are just doing their jobs. The recent decision in Rosenfield v. GlobalTranz Enterprises, Inc. from the United States Court of Appeals for the Ninth Circuit questioned the viability of this approach.
Alla Rosenfield worked for GlobalTranz Enterprises, a provider of transportation management services, first as Manager of Human Resources and then Director of Human Resources and Corporate Training. Although she handled many of the traditional areas of Human Resources management, she had no authority over the company’s compliance with the Fair Labor Standards Act (FLSA) – that authority was vested in her boss.
FLSA VIOLATIONS NOTED
Nevertheless, Rosenfield complained frequently to her boss that the company was not complying with the FLSA, often noting that many employees were misclassified as exempt and should receive extra wages. In addition to these complaints, it was estimated that she made these same thoughts known in almost 30 different weekly and monthly reports to her superiors.
Although Rosenfield’s boss wasn’t happy with the complaints, he agreed to address them but told her that it was not her role to determine whether adequate changes were being implemented. When Rosenfield subsequently documented continuing noncompliance and complained to her boss, she was fired, leading her to sue the company for violating the anti-retaliation provision of the FLSA which makes it unlawful to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding…”
The lower court dismissed the case, finding that Rosenfield was not protected because she had not actually “filed any complaint” when carrying out her duties as a human resources executive. Rosenfield then appealed to the Ninth Circuit Court of Appeals.
AREN’T MANAGERS SUPPOSED TO SPEAK UP?
The Ninth Circuit recognized that many other circuits use a “manager-specific legal standard” to limit protection. This standard protects against retaliation only if a manager “step[ped] outside his or her role of representing the company” and either filed a claim on their own, took some action to assist others in doing so or otherwise engaged in behavior that could reasonably be seen as asserting rights under the statute.
On the other hand, the court also noted previous US Supreme Court decisions calling for protections to be afforded only if the employer had “fair notice” that an employee was “making a complaint that could subject the employer to a later claim of retaliation.” This test requires a case-by-case analysis of both the content and context of the complaint to determine if it was sufficiently clear and detailed for the employer to interpret it as an assertion of rights as opposed to simply an expression of concern offered by a manager to assist the employer in doing the right thing.
To apply the Fair Notice rule, the appeals court explained the need to be mindful that an employee’s job title and responsibilities are a significant part of the context of the claim. No doubt, a manager is generally expected to speak up about workplace issues and the need for change and a reasonable employer therefore would not be expected to interpret such expressions as the filing of a claim or complaint. However, courts could distinguish between concerns expressed by first-line managers who oversee only daily operational matters and those offered by higher level managers who oversee legal compliance and larger policy issues.
In this instance, the Ninth Circuit ruled that the context of Rosenfield’s complaints should have led the employer to understand that she was seeking to assist others in obtaining FLSA rights. Since FLSA compliance was not within the scope of Rosenfield’s job, her advocacy on this issue could not reasonably be considered merely part of her role as a manager. As such, she was protected from retaliation for voicing her concerns about FLSA violations even though she served as a high level manager.
BOTTOM LINE
This is a troubling decision since it seems to offer special whistleblower-type status to mangers who basically are just doing their jobs. In fact, the dissenting judge pointed out that this decision seems to afford greater protections to managers over rank-and-file workers. The latter, to be protected, must truly take a bold and often intimidating step to file a complaint or stand up for co-workers, essentially becoming adversarial to their employers. Managers, on the other hand, merely need to mention their concerns in the course of doing their jobs.
As noted, other jurisdictions continue to adhere to the “manager-specific” rule so it remains to be seen whether the Ninth Circuit’s view of things gains traction elsewhere. Still, until the Eighth Circuit weighs in, Minnesota employers should exercise a bit of caution to consider the context of a manager’s complaints before determining that their status as a manager eliminates any possibility of a retaliation complaint.