On August 25, 2020, there was a very interesting decision rendered on a Motion to Dismiss by federal judge Virginia M. Hernandez Covington, sitting in the Middle District Court of Florida.
Punishing an Employee For Seeking Leave Under the Families First Coronavirus Act is Illegal
In Kofler v. Sayde Steeves Cleaning Service, Inc., the employee plaintiff, Deborah Kofler, was a residential/commercial cleaner who requested two weeks of unpaid leave under the FFCRA to care for her two children who had to stay home due to the pandemic.
Her employer ignored that request, and a week later thereafter terminated her employment.
Terminating an Employee for Seeking Leave Pursuant to the Families First Coronavirus Response Act ("FFCRA") Constitutes a Violation of the Fair Labor Standards Act ("FLSA")
Kofler sued, alleging illegal retaliation pursuant to the FLSA, by way of the FFCRA. The defendant sought to dismiss the action, asserting that she had not stated any claim.
The Court dismissed the defendant's contentions out of hand. We will let the Court take it from here:
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In Count I, Kofler asserts a claim for FLSA retaliation, arguing that Sayde fired her in violation of the FLSA because she had requested FFCRA leave. (Doc. # 1 at 4). The FLSA makes it unlawful
to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.29 U.S.C. § 215(a)(3). To state a claim for FLSA retaliation, a plaintiff must allege that: "(1) she engaged in a statutorily protected activity; (2) she subsequently suffered adverse action by the employer; and (3) a causal connection existed between the employee's activity and the adverse action." Keith v. Univ. of Miami, 437 F. Supp. 3d 1167, 1171 (S.D. Fla. 2020).
Sayde raises multiple arguments for dismissal of this claim. None are persuasive. First, it argues that Count I fails to state a claim because Kofler has not plausibly alleged that she engaged in protected activity under the FLSA. (Doc. # 10 at 3). The complaint asserts that Kofler "engaged in protected activity under the FLSA" by "pursuing her rights under the FFCRA." (Doc. # 1 at 4).
Although the FLSA and FFCRA are different statutes, retaliation for asserting rights under the FFCRA violates the FLSA. The FFCRA prohibits employers "from discharging, disciplining, or discriminating against any Employee because such Employee took Paid Sick Leave under the [Emergency Paid Sick Leave Act (EPLSA)]," which is a part of the FFCRA, or "because such Employee has filed any complaint or instituted or caused to be instituted any proceeding . . . under or related to the EPLSA." 29 C.F.R. § 826.150(a); Families First Coronavirus Response Act, Pub. L. No. 116-127, § 5104, 134 Stat. 178, 196-97 (2020). Under the FFCRA,
An Employer who discharges, disciplines, or discriminates against an Employee in the manner described in subsection (a) is considered to have violated section 15(a)(3) of the FLSA, 29 U.S.C. 215(a)(3), and shall be subject to the enforcement provisions relevant to such violations set forth in sections 16 and 17 of the FLSA, 29 U.S.C. 216, 217.29 C.F.R. § 826.150(b)(2); Families First Coronavirus Response Act, Pub. L. No. 116-127, § 5105(b), 134 Stat. 178, 197 (2020). Thus, retaliation claims regarding the FFCRA may be brought under the FLSA. Notably, Sayde fails to address the statute and related regulation's language about the FLSA in its Motion.
In light of the above, Kofler has plausibly alleged that she engaged in protected activity under the FLSA by requesting FFCRA leave.
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That about says it all.
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