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Internal wage-and-hour complaints don’t count as ‘testimony’ in FLSA retaliation cases

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in Discrimination and Harassment,Employment Law,Human Resources

The Fair Labor Standards Act (FLSA) includes a retaliation clause that bars employers from punishing employees who provide “testimony” in FLSA cases. That doesn’t mean, however, that employees who complain internally about wage-and-hour issues are automatically protected.

The 4th Circuit Court of Appeals, which covers North Carolina employers, has refused to overturn an earlier decision that limits retaliation cases to those involving actual testimony in legal proceedings.

Recent case: Kathryn Harman claimed that Unisys punished her when she complained internally that she was improperly classified as an exempt administrative employee under the FLSA.

She sued for both the alleged misclassification and alleged retaliation. The court tossed out her retaliation claim.

On appeal, Harman asked the 4th Circuit to reverse an earlier FLSA ruling that said employees had to testify in a judicial or agency setting (in court or before the EEOC) in order to be protected against retaliation. Harman said her internal complaint should have been protected, too.

The court refused to overturn its earlier decision. (Harman v. Unisys, No. 09-1298, 4th Cir., 2009)

Final note: It wasn’t a total win for Unisys. Harman was representing herself in this case, and filed a convoluted complaint that was full of irrelevant material. The 4th Circuit reversed a lower court dismissal of many of her claims and said Harman should have a chance to clean up her filing. The lower court will now reconsider some of those claims, which allege race and age discrimination.

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