Don’t ‘shoot the messenger’, retaliation claim will usually stick

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in Employment Law,Human Resources

Restaurant manager Peter Ball knew that one of his waiters was preparing to sue the restaurant for unpaid overtime under the Fair Labor Standards Act (FLSA). When Ball alerted the company president about the pending suit, the president made suggestions on how Ball could testify in a way that would favor the company. Ball refused and was fired within days.

Ball then filed suit, claiming that the FLSA makes it illegal to retaliate against a worker who has filed a complaint or instituted a "proceeding." But the court rejected his case, saying there must be an official judicial or administrative proceeding before an employee is protected from retaliation. A worker isn't protected, the court said, when the employee has simply voiced his opinion about a yet-to-be-filed lawsuit.

The split court said it may have been "morally unacceptable" to fire Ball, but it isn't illegal under the FLSA. (Ball v. Memphis Bar-B-Q Co. Inc., No. 99-1261, 4th Cir., 2000)

Advice: Don't take this as a green light to fire employees before a case hits the courts.

This type of "shooting the messenger" action usually will result in liability under several different anti-discrimination and whistle-blower laws. Although this court found nothing to protect Ball under the FLSA, this decision is an exception to the rule that a person who helps an individual making a complaint is also protected against retaliation.

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