There Is Hope After All: Fifth Circuit Holds that Employers May Still Prevail on FLSA Retaliation Claims


A June ruling by the Fifth Circuit Court of Appeals has provided a bit of a relief for employers who face Fair Labor Standards Act retaliation claims from employees.

The Supreme Court's ruling in Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325, 1329, 179 L. Ed. 2d 379 (2011) represented a significant victory for employees, but now all is not lost for employers. In Maynor v. Dow, No. 10-40771, 2011 U.S. App. LEXIS 12759 (5th Cir. June 22, 2011), the Fifth Circuit affirmed a district court’s judgment in favor of the employer in an FLSA retaliation lawsuit, concluding that the employer was entitled to a judgment in its favor based on solid evidence that the employer consistently applied its unambiguous policies.

Maynor v. The Dow Chemical Company

Roy Maynor had worked for Dow for more than 30 years. In 2003, Maynor’s union negotiated a collective bargaining agreement requiring employees to participate in a company skills program, which was to be administered through a nearby college. To allow Dow to track its employees’ progress through the program, the company required employees to sign a release that authorized the college to release employee test results to Dow. Maynor refused to sign the release.

Dow sent Maynor eleven e-mails over a ten-month period requesting that Maynor sign the release, and warning him that he would be disciplined if he did not. Even after Dow issued Maynor a written disciplinary report, he still refused to sign the release. Dow sent Maynor five additional e-mail warnings stating that failure to return the release would result in a suspension without pay. Undeterred, Maynor continued to refuse to sign the release. Consequently, Dow suspended him. Dow followed up by sending Maynor four additional e-mails, which informed him that if he did not return the release he would face the next step in progressive discipline, termination. Nonetheless, Maynor still refused to sign the release, and instead obtained a copy of his test results from the college, and provided a copy to Dow. Dow did not review the results provided by Maynor.

In late 2005, Maynor met with his supervisor. During this meeting, Maynor complained that Dow was not paying employees for their time spent studying for the skill assessment tests. Approximately one month later, Dow terminated Maynor for refusing to return the release and for failing to comply with the skills program. Maynor sued Dow, claiming that Dow terminated his employment in retaliation for his FLSA complaints. At trial, the jury found in Maynor’s favor, and awarded him $109,887 in back pay. Dow filed a motion for judgment as a matter of law, arguing that Maynor had insufficient evidence to show that he was terminated from employment because of his FLSA complaint. The district court agreed with Dow, and ordered that Maynor take nothing from his FLSA retaliation claim.

In reaching its decision, the district court reasoned that to prevail on his FLSA retaliation claim, Maynor was required to prove that: (1) he engaged in protected activity, and (2) he would not have been fired but for his protected activity. Applying Kasten, the appeals court agreed that Maynor’s complaint to his supervisor about not being paid for his time spent studying for skills assessment tests constituted protected activity under the FLSA. Nevertheless, the court explained that there was “ample evidence showing that Maynor was fired because he repeatedly refused to comply with Dow’s requirement to sign [the] release form.” Moreover, the court found it persuasive that “Maynor was given opportunity after opportunity to comply with” Dow’s requirement that employees return the release. As the appeals court opined, “Dow was not required to abandon its plans to discipline Maynor for insubordination because he made an oral complaint about lack of pay for time spent working.” Finally, the court concluded that Dow was well within its right in seeking consistency and administrative efficiency in the skills program to require employees to sign the release as opposed to providing copies of their test records directly to Dow. Therefore, it was immaterial that Dow was not satisfied that Maynor had provided his test results directly to Dow. For these reasons, the district court held that, as a matter of law, there was insufficient evidence to support the jury’s verdict that Maynor was fired for engaging in activity protected by the FLSA.

Practice Tips

While Kasten makes it easier for employees to lodge FLSA retaliation claims, the Dow case demonstrates that employers may still defeat FLSA retaliation claims under the right circumstances. To increase their chances of prevailing in FLSA retaliation claims, employers should take the following steps:

  • Consistently apply company policies;
  • Have a written and enforced anti-retaliation policy that expressly covers complaints concerning the employer’s pay practices, and warns employees about the consequences of retaliating against employees who make reports under the policy;
  • Provide training to supervisors and managers, so they can be prepared if an employee complains about the employer’s pay practices;
  • Provide a copy of the company’s anti-retaliation policy to any employee who complains about pay practices and any employee aware of the complaint; and
  • Inform the complainant in writing to immediately notify human resources if he or she perceives any retaliatory conduct by supervisors or other employees.

If you have any questions regarding the Dow case, its application, or steps employers can take to prevent FLSA retaliation lawsuits, please visit the Haynes and Boone Labor and Employment Practice page of our website or contact one of the authors listed below. You may also view the alert in the PDF linked below.

Dean J. Schaner


Laura E. O'Donnell


Felicity A. Fowler


PDF - FLSA_Retaliation_Claims.pdf

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