Tuesday, June 28, 2011

Facebook Post Not a "Serious" FLSA Compaint

Lilli Morse claimed that her employer failed to pay her overtime, and when she complained about it on Facebook, they fired her. Does she have a case? Not according to a Florida federal district court. In Morse v. JP Morgan Chase & Co., No. 8:11-CV-779-T-27EAJ (M.D. Fla. June 24, 2011), the Court dismissed the employee's FLSA claim that she was fired in retaliation for the Facebook post.

Why? Earlier this year, the Supreme Court held that oral as well as written complaints receive retaliation protection under the FLSA. But that doesn't mean any ole' gripe will count. From the Morse opinion, summarizing and liberally quoting Kasten:
The requirement that a complaint be "filed" is intended to provide the employer with "fair notice" that an employee "is in fact making a complaint about an act violation," rather than "just letting off steam." "[A] 'filing' is a serious occasion, rather than a triviality." "As such, the phrase 'filed any complaint' contemplates some degree of formality, certainly to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of its business concerns."
Well, when you put it that way, it makes the issue pretty easy to resolve:
Morse does not allege that she made anything close to a serious complaint to her employer. In fact, she never complained to her employer at all. She simply voiced her disagreement with her employer's payment practices on her Facebook page. This "letting off steam" falls far short of the activity protected by [the FLSA].
Claim dismissed. She still has a surviving claim for unpaid overtime wages though.

HT: Law360: JPMorgan Ducks Worker's Facebook Retaliation Suit

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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.

2 comments:

  1. Interesting. I wonder if she is a covered employee under the NLRA and if the post was aimed at her coworkers, i.e. protected concerted activity under NLRB Section 7.

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  2. NLRA is definitely the popular way to go these days (at least according to the NLRB). If her employer saw it... then it was probably published to her co-workers (would be interesting to know if any commented). It's not yet clear how receptive courts will be to such claims, but if she was covered then she may have a claim. It's also not clear whether she would be covered, but she works for a private employer in presumably (based on her overtime claim) a non-exempt position... so you may be on to something here David.

    Thanks for the comment!

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