Can a Facebook posting constitute a “complaint” for purposes of asserting an FLSA retaliation claim?


Lilli, an employee with your organization, was terminated after she posted a complaint on her Facebook page, claiming that she was never paid the overtime wages she was owed. She is now suing your organization alleging that it unlawfully retaliated against her in violation of the Fair Labor Standards Act (FLSA) when it fired her because of the Facebook posting. Will she be successful?


Probably not. In a case with similar facts, a federal district court in Florida ruled that an employee who complained on her Facebook page that her employer did not pay her overtime did not file a “complaint” within the meaning of the FLSA. Citing the US Supreme Court’s ruling in Kasten v Saint-Gobain Performance Plastics Corp, the court noted that while the statutory requirements for asserting an FLSA complaint may be satisfied via informal workplace procedures, a complaint must give the employer fair notice that the employee is alleging that it has violated the FLSA and is not “just letting off steam.” The employee in this case never lodged a complaint with her employer; she merely “voiced her disagreement” with the employer’s pay practices on Facebook. This fell far short of FLSA-protected activity, the court found, dismissing the employee’s retaliation claim.

Source: Morse v JP Morgan Chase & Co (MDFla 2011), No. 8:2011cv00779.

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