Last week, in Kasten v. St. Gobain, the Supreme Court held that the FLSA antiretaliation provision protects oral, as well as written, complaints. However, the Court declined to express any view on whether internal complaints to a private employer receive any protection. In my latest post on ELinfonet, I recommend that employers look for lower court precedent in their jurisdictions, and anticipate that courts which haven't addressed the issue will afford protection to internal complaints. So...
What is the current state of the law in Pennsylvania?
In Pennsylvania, several district court cases have afforded FLSA antiretaliation protection to internal complaints. I have not identified Third Circuit precedent directly on point, but the Pennsylvania district courts have relied heavily on the Third Circuit holding that the FLSA, particularly the antiretaliation provision, should be interpreted liberally. See Brock v. Richardson, 812 F.2d 121, 123 (3d Cir.1987).
The Western District has expressly held that "[a]n internal complaint is a protected activity for purposes of 29 U.S.C. § 215(a)(3)." Wildi v. Alle-Kiski Med. Ctr., 659 F. Supp. 2d 640, 664-65 (W.D. Pa. 2009); citing Chennisi v. Communications Constr. Group, LLC, 2005 WL 387594, at *2 (E.D.Pa. Feb. 17, 2005). The Western District "likewise [found] an informal complaint to an employer to be sufficient." Marriott v. Audiovox Corp., 2006 WL 3805145 (W.D. Pa. Dec. 22, 2006)(emphasis added). Finally, my home district (Middle District of Pennsylvania) "agrees" that the FLSA antiretaliation provision "affords employees who make informal complaints protection," including internal complaints to their employers. Dougherty v. Ciber, Inc., 2005 WL 2030473 (M.D. Pa. July 26, 2005).
So, it’s a clean sweep for internal complaint protection in Pennsylvania! I see no reason for Kasten to upset the status quo on this. And, if it goes to the Third Circuit, I think chances are that they will likewise afford protection to internal complaints (see my ELinfonet post linked above for my rationale).
Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.