In general terms, retaliation occurs when an employer takes adverse action against an employee. Firing an employee is a classic example of retaliation, but retaliation can take many forms. Demotions, reductions in pay, and undesirable work assignments constitute retaliation if these actions are taken in response to reporting wage and hour violations. Even subjective changes in the terms and conditions of your employment – such as reassignment to a less favorable office or unfair evaluations of your performance – can constitute unlawful retaliation if these actions are taken in retaliation for complaining about unlawful wage and hour practices.
These basic legal principles can become complicated when applied to real world scenarios in the workplace. For example, what sort of “wage and hour” issues are covered by the laws against retaliation? And are informal or internal complaints made directly to one’s employer considered protected activity? This article provides the short answer to these questions, but you should consult with an Oregon employment law attorney for guidance in your specific case. In addition to the nuances of your workplace, the law in this area continues to evolve.
What are wage and hour issues?
Complaining to your employer about a failure to pay overtime compensation or minimum wages clearly implicates the protections of Oregon and federal wage and hour law. Vacation pay, sick leave, rest periods, meal breaks and payment for nondiscretionary bonuses are also typically considered to be wage and hour issues.
Employees will find it helpful to discuss their situation with an Oregon wage and hour attorney to determine whether their compensation issue is indeed covered by the applicable wage and hour laws. For example, ORS 652.355 provides, in part, that “(1) An employer may not discharge or in any other manner discriminate against an employee because: (a) The employee has made a wage claim or discussed, inquired about or consulted an attorney or agency about a wage claim ….” In Goins v. Winco Foods LLC, 617 F.Supp.2d 1100 (D. Or. 2007), the U.S. District Court held that seeking pay for a day off work for jury duty constituted a “wage claim” protected from retaliation, whereas in Perri v. Certified Languages International, 187 Or.App. 76 (2003), a demand for “prospective pay increases” was held not to be a protected “wage claim.”
When are employee wage and hour claims protected from retaliation?
Oregon lawyers who represent employees are continuing to seek guidance from the courts to ensure that Oregon employees are protected from retaliation for making internal or informal wage claims. In the Ninth Circuit Court of Appeals, including Oregon, internal wage and hour complaints are considered to be protected activity under the federal FLSA. A decision by the federal court for the District of Columbia provides a useful discussion of this issue. In Cooke v. Rosenker, 601 F.Supp. 64 (D.D.C. 2009), the employee’s FLSA retaliation claim was dismissed on summary judgment where, “Cooke’s meeting with [her supervisor] Conners was an ‘amorphous expression [ ] of discontent related to [her] wages,’ . . . an act that does not, under these circumstances, amount to ‘filing any complaint’ within the meaning of section 215(a)(3).”
While observing that there is a circuit split in the federal courts over whether “informal or internal complaints” satisfy the “any complaint” standard of the FLSA, the Cooke decision notes that internal complaints are protected in the Ninth Circuit:
There is some disagreement among the circuits whether an informal or internal complaint constitutes ‘any complaint’ within the meaning of section 215(a)(3). The Courts of Appeals for the First, Third, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits have concluded that an informal complaint to an employer can constitute protected activity for purposes of the FLSA. See Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 44 (1st Cir. 1999) (“[T]he FLSA’s anti-retaliation provision will protect an employee who has filed a sufficient complaint with an employer”); Lambert v. Ackerly, 180 F.3d 997, 1004 (9th Cir. 1999) (“[W]e conclude that ‘any complaint’ related to the FLSA includes complaints made to employers.”); EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989-90 (6th Cir. 1992) (telling an employer it may be ‘breaking some sort of law’ is protected activity); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir. 1989) (“[T]he unofficial complaints expressed by the women to their employer about unequal pay constitute an assertion of rights protected under the statute.”); Brock v. Richardson, 812 F.2d 121, 125 (3d Cir. 1987) (finding that an employee is statutorily protected even when no formal complaint was filed, but employer mistakenly believes such a complaint was filed); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir. 1984) (“The Act also applies to the unofficial assertion of rights through complaints at work.”); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 180 (8th Cir. 1975) (“The Act prohibits discrimination against an employee who asserts or threatens to assert his or her FLSA rights.”). On the other hand, the Second and Fourth Circuits have ruled that an informal complaint to an employer is not protected activity under the FLSA. [citing cases].
601 F.Supp. at 74.
Consulting with an attorney about a wage claim is a protected activity
As discussed above, Oregon employers may not retaliate against an employee for consulting with an attorney or agency about a wage claim. ORS 652.355. If you have questions about wage and hour issues or have been retaliated against for making a wage claim, we urge you to contact an experienced Oregon employment lawyer.