New York, N.Y. (October 12, 2022) - On September 14, 2022, a panel of the U.S. Court of Appeals for the Third Circuit decided an important question under the Fair Labor Standards Act (FLSA) in Uronis v. Cabot Oil & Gas Corp., __ F.4th __, 2022 U.S. App. LEXIS 25727. In this case, the plaintiff asserted that his job application to a prospective employer was denied because the employer anticipated that he would soon be filing an opt-in notice to join a collective action filed against the employer under the FLSA. The anti-retaliation provision of the FLSA proscribes discrimination against employees who have engaged in protected activity.
Under Section 15(a)(3) of the FLSA, protected activity includes having "testified" or being "about to testify" in any FLSA-related proceeding. The Third Circuit held that the plaintiff's stated intention to join an FLSA collective action meant that he "testified" or was "about to testify" in any FLSA-related proceeding.
The Case
In Uronis, the plaintiff was allegedly a former employee of Cabot Oil & Gas Corporation ("allegedly" because Cabot contested that it had been his employer). In February 2019, the plaintiff's former co-worker filed a putative FLSA collective action against Cabot and another entity, Carrie's Transport & Rental LLC, alleging failure to pay overtime in violation of the FLSA. In August 2019, the plaintiff applied for a job with GDS, a Cabot subsidiary. Shortly thereafter, a former co-worker and the lead plaintiff moved for collective certification. On August 28, 2019, a GDS manager texted the plaintiff, stating that, although he was more qualified than any other candidates being considered for the position, Cabot had declined to hire him or any other putative members of the collective based on the pendency of the litigation. The plaintiff then joined the collective.
The plaintiff filed suit against Cabot and GDS alleging that they violated the FLSA's anti-retaliation provision when they refused to hire him because he was "about to testify" in the collective. Cabot and GDS filed a motion to dismiss, arguing, among other things, that he did not engage in protected activity under FLSA Section 15(a)(3).
The district court granted the motion, reasoning that Uronis was not "about to testify" because he was not "scheduled" to testify in the collective. Relying on out-of-circuit authority, the district court explained that the unambiguous meaning of "about to testify" protects only employees who are "scheduled" to testify because the "about to testify" language connotes some sense of immediacy, as opposed to a possibility.
The Third Circuit panel reversed. It construed the languages "about to testify" in light of the broad, remedial nature of the FLSA. The panel noted that the U.S. Supreme Court has interpreted Section 15(a)(3) to protect employees engaging in activities not delineated in the statute.
Relying heavily on its own precedent and the Supreme Court's decision in Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011), the court held that the district court erred in adopting a narrow definition of "about to testify." The court pointed out that Kasten held that an oral complaint of an FLSA violation is protected conduct under Section 15(a)(3), even though the section is written in terms of "filed" complaints, not oral ones. Kasten explained that, because employees often make oral complaints through workplace hotlines and interviews, limiting the scope of Section 15(a)(3) would discourage the use of informal workplace grievance procedures that are designed to protect employees.
The court also noted that, while no court has directly addressed whether opting in to an FLSA collective action constitutes testimony under Section 15(a)(3), district courts around the country have interpreted the term "testify" broadly. The court concluded that it would be inconsistent with the statue's broad purpose, and impermissible under Kasten, to require an employee to be scheduled to testify or subpoenaed to testify to be afforded protection under Section 15(a)(3). The court concluded that an employee effectively "testifies" under Section 15(a)(3) when the employee files a consent to join an FLSA collective action.
The Third Circuit panel next turned to the question of whether an employee is "about to testify," where an employer anticipates that the employee will do so. The court concluded that the district court erred in its construction of the word "about," finding it was far too narrow. The court cited myriad cases, which hewed to the reasoning of Kasten, that interpreted "about to testify" to include testimony that is impending and anticipated but has not been scheduled or subpoenaed.
Concluding, the court held that broad interpretations of "about to" also comport with the FLSA's broad mandate to prevent a fear of retaliation from chilling employees' assertion of FLSA rights.
It is not likely that the U.S. Supreme Court will take up this issue any time soon, but that could change depending on whether other circuit courts issue rulings that conflict with this decision.
Employers' Bottom Line
Employers within the Third Circuit – which includes New Jersey, Pennsylvania, Delaware, and the Virgin Islands – should heed this decision when considering refusing to hire applicants who have opted in to an FLSA collective or are known to be planning to do so, or in taking adverse action against current employees in the same position.
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