A recent Ninth Circuit decision clarified an important part of federal wage and
hour law: retaliation under the Fair Labor Standards Act (FLSA) does not have to come
from your direct employer.
What is Retaliation Under the FLSA?
The FLSA makes it illegal to punish workers for filing complaints about their
wages (i.e., unpaid wages, overtime violations, misclassifications, etc.) against their
employers, whether formal or informal. Retaliation can include firing, cutting hours,
canceling work, or blocking future opportunities because an employee filed a complaint.
The Ninth Circuit’s Recent Clarification
In Hollis v. R&R Restaurants. Inc, the plaintiff, an exotic dancer at a club called
Sassy’s, sued the club’s owners and managers under the FLSA for misclassifying
dancers as independent contractors to avoid paying minimum wage and overtime.
When Hollis filed the complaint, Frank Faillace, a partner and manager of both Sassy’s
and another club, Dante’s, canceled Hollis’ agreement to perform at Dante’s. Hollis then
amended the complaint to include Faillace’s cancellation, alleging that the cancellation
was retaliation and in violation of the FLSA.
The Ninth Circuit Court held that an FLSA retaliation claim may proceed against
any person acting “directly or indirectly in the interests of an employer.” For example,
this expands retaliation claims to include owners, managers, or affiliated business
partners. The bottom line is that the person retaliating does not need to be the
employee’s direct employer.
The Impact of Hollis
Hollis’ holding prevents employers from attempting an end-around the FLSA’s
anti-retaliation provision by having others (managers or affiliates) do their dirty work for
them. By expanding the definition of whose conduct can be imputed to the employer,
the Ninth Circuit has ensured that the FLSA’s anti-retaliation provision reaches its
intended scope of protecting employees and plaintiffs from being penalized for enforcing
their rights.