On August 27, 2018, the 7th Circuit affirmed the dismissal of a retaliation claim under the Fair Labor Standards Act (“FLSA”) for legally insufficient pleading of protected activity. Sloan v. American Brain Tumor Association, No. 18-1103 (7th Cir. 8/27/2018). The plaintiff sued her former employer for unlawful retaliation in violation of the FLSA. The district court dismissed the complaint. The 7th Circuit held that the plaintiff’s allegations, even if generously construed, do not remotely support a claim that the defendant retaliated against her for asserting rights protected by the FLSA. Under federal pleading standards, a complaint must state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads facts that allow a court to draw a reasonable inference that the defendant is liable for the misconduct alleged.

The FLSA requires employers to pay minimum wages and overtime compensation to nonexempt employees. The FLSA also makes it unlawful for an employer to discharge or in any other manner discriminate against any employee because the employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to the FLSA. To state a retaliation claim under the anti-retaliation provision of the FLSA, a plaintiff must plausibly allege that she engaged in protected activity under the FLSA, her employer took an adverse employment action against her, and a causal link exists between the two. In this case the plaintiff did not adequately allege that she engaged in protected activity under the FLSA. Her underlying internal complaint to the company’s Board qualified as protected activity under the FLSA only if a reasonable employer in the defendant’s circumstances with its knowledge of the relevant context would have had fair notice that the plaintiff was asserting FLSA protected rights. Her complaint, in the form of an email and a letter from her attorney, did not refer to the FLSA. Although that is not necessarily fatal, a complaint must at least be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the FLSA and a call for their protection. The rights protected by the FLSA are those found in its wage-and-hour provisions. The plaintiff was an exempt employee. Her complaint was insufficient to put a reasonable employer on notice that she was complaining about a violation of her rights under the FLSA. The email contained only a very generalized protest that certain disciplinary action was against federal law and requested the Board to investigate. The letter merely referenced the plaintiff’s belief in the illegal nature of the actions and discipline. The email and letter also attacked the basis for the plaintiff’s suspension, criticized her supervisor’s leadership, and protested the absence of a human resources department. The plaintiff’s complaint did not refer to her wages or hours, or challenge her classification as an exempt employee. Her complaint was too vague to put a reasonable employer on notice that she was asserting a right under the FLSA. Therefore, her complaint did not constitute protected activity, and she could not allege a valid FLSA retaliation claim in federal court.