Plaintiff began working for employer in 2010. She was promoted to Director of HR in early 2011. She repeatedly told her superiors that the company wasn?t complying with FLSA. The company fired her in mid-2011. The district court granted the company?s motion for summary judgment on the basis she had not filed a complaint within the meaning of the FLSA.

The Ninth Circuit reversed 2-1. The majority held that the anti-retaliation provision had to be broadly interpreted. It considered the fact that the plaintiff was a manager an important fact. ?Generally speaking, managers are in a different position vis- ?-vis the employer because (as relevant here) their employer expects them to voice work-related concerns and suggest changes in policy to their superiors.?

The? court? refused? to? decide? whether? the requirement of some circuits that a manager must step outside his or her role in order to engage in protected activity under the FLSA was inconsistent with Kasten v. Saint-Gobain Performance Plastics, 563 U.S. 1 (2011). Instead, the court adopted a more contextual approach where the employee?s level of managerial responsibility was just one factor. One important factor here that weighed in favor of protection was that the plaintiff was not responsible for FLSA compliance.

Here the plaintiff had made many oral complaints about FLSA violations to her boss, who was responsible ?for ?FLSA ?compliance. ?Under ?these circumstances, a jury could find the employer either understood or reasonably should have understood? that? she? was? asserting? rights protected by the FLSA and calling for their protection. A Tenth Circuit district judge sitting by designation would have applied the manager rule strictly (as the Tenth Circuit does) and affirmed the dismissal.

Rosenfield v. Globaltranz Enterp. Inc., — F.3d — (9th? Cir. 12/14/2015) (Graber, Kozinski, Benson (D. Utah)).