California Public Agency Labor and Employment Blog - Useful Information for Navigating Legal Challenges

This blog post was authored by Maila Labadie

Emerging technologies and increased demand for worker productivity during lean economic times have changed the way Americans work.  Today, employees routinely check their smartphones at all hours for emails, text messages, voicemails, and other electronic transmissions.  The modern workplace includes anywhere within range of a wireless signal.  Some employees even seem to be addicted to using their smartphones.  In 2006, Webster’s New College Dictionary’s word of the year was “CrackBerry,” describing a person addicted to his or her BlackBerry device.

Although smartphones and other personal electronic devices offer employers and employees many advantages in the workplace, use of these devices can have significant legal implications.  One such legal issue is whether employers must pay nonexempt employees overtime under the Fair Labor Standards Act (FLSA) for time spent checking smartphones after work hours.

The FLSA requires employers to pay overtime compensation to nonexempt or hourly employees at 1.5 times the regular rate of hourly pay for all hours worked beyond a specified number (usually 40 hours in a 7 day workweek). (29 U.S.C. section 207(a)(1)).  Although “de minimis” work or insignificant periods of time are treated as non-compensable under the FLSA, electronic smartphone communications on the aggregate may amount to substantial work time for employees.  (29 C.F.R. section 785.47).  Furthermore, even work that an employer does not request is compensable if the employer has actual or constructive knowledge of it.  (29 C.F.R. section 785.11).

Employers should be wary of lawsuits for electronic overtime because employees who prevail can recover lost wages (plus interest), liquidated damages, and attorneys’ fees and costs.  (29 U.S.C. section 216(b)).  Significantly, the FLSA also allows employees to file class action lawsuits for a class of similarly situated employees to recover unpaid overtime.  Employers should note that the number of FLSA lawsuits filed is on the rise, and there are several pending cases involving employer liability for electronic overtime.

One case of particular significance to public employers is the 2013 federal district court case of Allen v. City of Chicago.  In this case, the Chicago Police Department issued BlackBerrys to a number of its officers, including a Sergeant named Jeffrey Allen.  Sergeant Allen later brought a class action lawsuit against the City, alleging that he and other similarly situated officers were entitled to unpaid overtime compensation under the FLSA for off-duty use of their BlackBerrys.  Allen claimed that he and other officers were required to use their BlackBerrys to perform off-duty work such as responding to telephone calls, emails, voicemails, and text messages.  Allen stated that the Department expected officers to be available 24 hours per day via BlackBerry, and officers felt obligated to respond to emails while off duty to improve chances of receiving promotions or coveted assignments.  The City moved to dismiss the action, but the trial court denied the motion and the matter will now proceed forward towards trial.

Potential defenses to class action overtime claims for smartphone usage include (1) that the varied extent of smartphone usage among employees defeats the similarly situated requirement and (2) that employees may be unable to prove the amount of time they actually spent conducting off-duty smartphone work.  Nonetheless, employers should be concerned that courts have permitted such actions to proceed to trial, and employers should take the following precautions to reduce potential liability for electronic overtime lawsuits:

1. Properly classify employees as exempt or nonexempt based on the employee’s job duties and salary.
2. If possible, limit issuance of such devices to employees who are truly exempt and prohibit nonexempt employees from having remote access to work communications on their personal smartphones.
3. If smartphones must be issued to nonexempt employees because of business necessity or if nonexempt employees have personal smartphones with remote access, require employees to keep detailed time records of each phone related activity, including the date, time, and description of the communication. (The Department of Labor recently issued an “app” that allows employees to track hours worked: http://www.dol.gov/dol/apps/timesheet.htm).
4. Develop a comprehensive written policy regarding the use of smartphones, defining the agency’s objectives regarding remote access and employee overtime.
5. Regularly remind employees of agency policies against performing unauthorized work, and follow through with disciplinary action against employees who violate the policy (i.e. confiscate employer-owned phones or suspend remote access privileges).
6. Unless prohibited by privacy laws, collective bargaining agreements, or other authorities, monitor employees’ access to and use of the network and email.
7. Some supervisors send emails with the “delayed delivery” feature on Outlook so that employees do not receive the email until they get to work.

We anticipate that these types of claims will become more prevalent.  Therefore, we encourage agencies to proactively address the issue of off-the-clock hours caused by use of smartphone technology so that your agency can avoid being challenged.

This blog post was authored by Alison Kosinski 

Many employers have chosen to implement “auto-deduct” policies, which automatically deduct a set amount of time each day or shift for an employee’s meal break.  While the Department of Labor has stated that automatic deductions are lawful under the Fair Labor Standards Act (FLSA), these policies may run afoul of basic FLSA principles if employers are not careful.

The FLSA requires that employers compensate employees for all work time.  This time includes work either “suffered or permitted,” even if the employer is not actually aware that the employee is performing work.  Meal times can be tricky, depending on what an employee does while eating away.  In general, a meal period is not compensable:

“[a]s long as the employee can pursue his or her mealtime adequately and comfortably, is not engaged in the performance of any substantial duties, and does not spend time predominantly for the employer’s benefit . . .”

(White v. Baptist Memorial Health Care Corp. (6th Cir. 2012) 699 F.3d 869.) Rather than requiring employees to clock in and out for their meal breaks, employers may, for example, automatically deduct 30 minutes from each employee’s daily time records, or 2½ hours from their weekly records.  While this option may have some administrative advantages, employers must be careful when implementing such a policy.

For example, in Quickley v. University of Maryland Medical System Corporation, the employer hospital automatically deducted 30 minutes from employees’ daily time records for scheduled meal breaks.  Employees used a Kronos system to swipe their ID badges at the beginning and end of their work days, but did not swipe in and out for meal breaks.  The employees sued and alleged that there was no way, either on the Kronos system or otherwise, to adjust time if they worked during a meal break.  In fact, the Kronos timekeeping system provided opt-out buttons for other time missed, but not for missed meal periods.  Based on this information, the district court denied the employer’s motion to dismiss, allowing the suit to go forward.

In Quickley, the court emphasized that when an employer’s automatic deduction policy shifts the burden on to the employee to report time worked during meal breaks, the employer must make its policy clear and make every effort to assist employees in reporting their time worked during the meal breaks.

In addition, if an employer establishes a reasonable process for employees to report time worked during a meal period, then the employee must follow the process.  If he or she does not, the employer may not be liable for that time worked.  This was the lesson from White v. Baptist Memorial Health Care Corporation, which we reported on our web-site.

In sum, if an agency automatically deducts meal breaks from its employees’ daily time records, it must also implement a policy and process for employees to override the automatic deduction if they work a portion or all of their meal breaks.  This policy should be easily accessible to employees and reviewed with employees during orientation and periodically thereafter.  It is advisable that employers make the procedure to override user-friendly and provide training on any technical methods for overriding automatic deductions.  We also recommend maintaining records of training provided to employees on how to override the automatic deductions.

This post was authored by Jennifer Rosner

Many employers enter into agreements with employee associations giving employees the right to earn compensatory time off (CTO)  in lieu of cash for overtime.   However, if an employer provides CTO, must employers allow its employees to use CTO at the employees’ option?  In 1987, the Department of Labor implemented regulations to enforce the CTO provision of the FLSA, Section 7(o).[1]  Per the regulation, an employee who requests to use accumulated CTO is permitted to use such time “within a reasonable period” after making the request.  If the employer cannot grant the CTO request within a reasonable period, the denial of the request will be unlawful unless the employer can demonstrate that granting the request would “unduly disrupt” its operations. [2]

These terms “within a reasonable period” and “unduly disrupt” have been the subject of debate.  Mere inconvenience to the employer is insufficient to deny an employee’s request to take CTO on the basis that it would be unduly disruptive.[3]   However, what constitutes “undue disruption” will likely depend upon the circumstances.

But what does it mean to grant the employee’s CTO request within a reasonable period?  There has been extensive litigation regarding employers' obligations to grant a CTO request.  The DOL has interpreted its regulations as requiring that an employee's request for compensatory time on a specific date be granted unless doing so would unduly disrupt the agency's operations.[4]   

This interpretation was challenged by the Ninth Circuit in Mortensen v. County of Sacramento (9th Cir. 2004) 368 F.3d 1082.  In Mortensen, the Court held that that an employer does not need to allow an employee to use accrued CTO on the specific day requested by the employee, but can instead honor the request by providing alternative dates within a reasonable time period after the request to use comp time is made.  Thus, once an employee requests the use of CTO, the employer has a reasonable period of time to grant the request.[5]   

On April 5, 2011, the DOL issued regulations that took effect on May 5, 2011.  The final rules did not include a proposed change to allow public-sector employers to grant employees compensatory time requested “within a reasonable period” of the request, instead of on the specific dates requested.  Instead, the final rule left the regulations unchanged, “consistent with [DOL’s] longstanding position that employees are entitled to use compensatory time on the date requested absent undue disruption to the agency.”[6]

Accordingly, there still remains a disparity between the Ninth Circuit (here in California) and the Department of Labor.  This disparity will only be resolved if the US Supreme Court decides to review the issue.  In the meantime, although California public employers may continue to follow the Ninth Circuit’s decision which permits them to define a reasonable window of time in which an employee may use CTO instead of permitting the employee to use CTO on the specific day demanded by the employee, in light of the DOL comment on their own regulation, plaintiffs’ lawyers may challenge that interpretation.  Thus, the inconsistency between the 9^th Circuit and the DOL in the interpretation of the same provision of the law, creates some risk for California employers in the denial of CTO.   An employer’s improper denial of an employee’s request to use CTO can result in liquidated (up to double) damages to the employee.[7] We believe that until the Supreme Court decides otherwise, following the Mortensen case, likely remains safe, but like so much of the FLSA, it is not entirely clear.

[1] 29 CFR 553.20-.28

[2] 29 U.S.C. § 207(o)(5)(B).

[3] 29 U.S.C. § 553.25(d).

[4] Wage and Hour Opinion Letter 1994 WL 1004861 (Aug. 19, 1994); DeBraska v. City of Milwaukee (E.D. Wis. 2000)  131 F. Supp. 2d 1032, 1034-35 ( (deferring to the Department's interpretation of its regulations as requiring that the specific compensatory time requested must be granted absent undue disruption).

[5] Id. at 1090.

[6] 76 FR 18832-01 (April 5, 2011)

[7] Kimpel v. Williams (C.D. Cal. 1999) 1999 WL 638580.

Employers have for years utilized unpaid internship programs to give students and recent college graduates a chance to gain work experience.  However, since the recession began in 2008, a growing number of unpaid interns have accused their employers of exploiting them. 

There are currently several class action lawsuits working their way through the courts that seek regular and overtime pay for unpaid interns.  Two former interns sued Fox Searchlight, a film company, for failure to pay wages to unpaid interns who worked on the film “Black Swan”.  This lawsuit was recently expanded to include all unpaid interns who participated in the company’s internship program.  Hearst Corporation is also being sued by a former intern who claims she worked from 40 to 55 hours per week for Harper’s Bazaar magazine without pay.  PBS’ Charlie Rose Show recently settled a lawsuit with a group of unpaid interns for $250,000.

The unpaid interns in these lawsuits claim that their employers treated them like employees.  Consequently, the interns argue they should have been paid like employees as required by the federal Fair Labor Standards Act (“FLSA”) and state wage laws. 

While the outcome of these lawsuits remains to be seen, public employers should take this opportunity to evaluate whether their unpaid interns should be paid.  Interns are exempt from the FLSA’s minimum wage and overtime rules if the following six criteria are met:      

1. The internship is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The agency that provides the training derives no immediate advantage from the activities of the intern; and on occasion the agency’s operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The agency and the intern understand that the intern is not entitled to wages for the time spent in the internship.

These criteria boil down to a few key concerns to keep in mind when using unpaid interns.  First, interns will likely be entitled to pay if the agency uses them as substitutes for regular workers or to supplement the existing workforce.  According to the U.S. Department of Labor (“DOL”), if the agency “would have hired additional employees or required existing staff to work additional hours had the interns not performed the work, then the interns will be viewed as employees and entitled to compensation under the FLSA.” 

Second, the internship experience should be focused on teaching interns skills that can be used in multiple employment settings.  The more an internship focuses on the agency’s actual operations and teaches skills specific to the agency, the less likely that the internship will resemble an educational environment.  For example, an internship that allows interns to learn skills by “shadowing” employees is more likely to be viewed as an educational experience as opposed to an intern who performs work that benefits the agency such as assisting customers, filing or other clerical work. 

Finally, the DOL recommends that agencies limit internships to a fixed period of time.  Many agencies allow unpaid interns to work on an indefinite basis.  This would be indicative of employment.  Consequently, agencies should inform interns of the duration of the internship at the outset.

The U.S. Court of Appeals for the Sixth Circuit in Ohio recently issued a decision rejecting a nurse’s claim for compensation for missed meal breaks under the Fair Labor Standards Act (“FLSA”).  Not only is the holding in White v. Baptist Memorial Health Care Corp a victory for employers, but it underscores the importance of having reasonable policies and procedures in place for reporting all time worked including overtime.

Margaret White was an emergency room nurse for Baptist Memorial Health Care Corp.  During her employment, White was given unpaid meal breaks that were automatically deducted from her pay check.  However, White’s meal breaks were not regularly scheduled due to the nature of working in an emergency room.  Instead, meal breaks occurred as work demands allowed.

The hospital’s employee handbook provided that if an employee’s meal break was missed or interrupted because of work, the employee would be compensated for the time worked during the meal break.  Employees were also instructed to record time spent working during a meal break in an “exception log” regardless of whether the meal break was partially or entirely interrupted.  White signed a document acknowledging her understanding of this policy.  White was also familiar with the hospital’s procedures to report and correct payroll errors.  She admitted that, when she utilized these procedures, errors were handled immediately.

White initially recorded her missed or interrupted meal breaks on the exception log pursuant to the policy and was compensated for her time.  However, White also stated there were occasions she was not paid for missing a meal break.  She also said that from time to time she told her supervisors and the human resources department that she was not getting a meal break.  However, she never said that she was not compensated for missing her meal breaks.  Eventually, White stopped reporting her missed meal breaks on the exception log and did not use the procedures to correct payroll errors.  She also did not keep records of when she missed meal breaks and was not compensated for them. 

White filed a class action against Baptist alleging violations of the FLSA for failing to compensate her for working through her meal breaks.  The U.S. District Court in Memphis, Tennessee granted summary judgment in favor of the hospital and decertified the class action on the grounds that the hospital’s policy for compensating employees for missed breaks was proper under the FLSA.  White appealed the decision to the Court of Appeals where it was affirmed.

In reaching its decision, the appellate court stated that a system which automatically deducts meal times from an employee’s work hours is lawful under the FLSA.  Further, if an employer establishes a reasonable process for an employee to report uncompensated work time, the employer is not liable for non-payment under the FLSA if the employee fails to follow the established procedures.  The Court further stated that when the employee fails to follow reasonable time reporting procedures, the employee prevents the employer from “knowing its obligation to compensate the employee and thwarts the employer’s ability to comply with the FLSA.” 

With these legal principles in mind, the court found that the hospital had established policies and a system in place to pay employees for time worked during meal breaks.  The evidence also showed that White was paid for her missed meal breaks when she utilized the system, and not paid when she failed to use the system.  There was also no evidence that the hospital prevented her from using the system.  Although White occasionally told her supervisors that she was not getting a break, she never told them that she was not being compensated for missing a meal break.  Based upon these facts, the court concluded that there was no way the hospital knew or should have known that White was not being paid for her missed meal breaks.  Therefore, White’s claim was denied.

The lesson the White decision teaches employers is that they should establish, reasonable procedures for employees to report all time worked including work during meal breaks or outside of their regularly scheduled work hours.  In addition, employers should regularly publish and remind employees of these policies and procedures.  Finally, employers should discipline employees who violate the established policies and procedures.  If you need help with creating these procedures or would like to have your existing procedures reviewed by one of our attorneys, please contact our Fresno, Los Angeles, San Diego or San Francisco office. 

The cell phone, in particular the so-called “smartphones” (e.g. iPhones, Blackberrys, Android phones) are amazing.  These devices allow us to be in contact no matter where we are on a 24/7 basis.  Some employers issue these devices to their employees both as a benefit to the employee but primarily as a benefit to the employer for the same reason: it allows contact at all hours of the day and night when necessary.

But when employees use these devices for work-related phone calls, text messages and emails while off-duty, should they be paid for this time?  This issue may be resolved in a case currently pending in the federal court in Illinois entitled Allen v. City of Chicago.

We normally do not report on a case pending in a trial court and certainly not about the ruling on a motion, which did not result in a judgment.  But this case seems of such particular significance that it merits a report.  Indeed, a number of other blogs have already commented on this case.

Here’s the situation.  The Chicago Police Department issued Blackberrys to a number of its officers including a Sergeant named Jeffrey Allen.  Sergeant Allen claims that he and other officers are required to use their Blackberrys to perform off-duty work including responding to telephone calls, emails, voicemails, and text messages.  Allen filed a purported class action lawsuit against the City alleging that he and other officers are entitled to overtime pay under the U.S. Fair Labor Standards Act for these phone based off-duty activities.  The City moved to dismiss the action but the trial court denied the motion and the matter will now proceed forward towards trial.

How this case will be resolved remains to be seen.  However, the novelty of this claim and the wide publicity the decision has received, may well result in a new cottage industry of FLSA litigation.

In order to minimize the likelihood of being the subject of such a case, the following steps are recommended:

1. If possible, limit issuance of such devices to employees who are truly FLSA exempt and thus not entitled to overtime pay.
2. If such phones must be issued to non-exempt hourly employees because of business necessity or operational demands, require employees to keep detailed time records of each phone related activity together with date, time of day, content description and actual duration of the call, email, text message, etc.  Be sure that the billings received from the service provider, such as AT&T, Verizon, etc., are maintained and reviewed and checked against the employee’s time reports for confirmation.  Keep in mind that FLSA requires the employer, not the employee, to keep accurate time records.  However, the employer can delegate that assignment to the employee as an additional part of their job.  Indeed, employees could be terminated for failure to keep accurate time records although they still must be paid because the employer receives the benefit of their services.
3. If such phones must be issued to non-exempt hourly employees, limit their issuance to those who really do have a bona fide job related necessity to have them.  That is, only give phones to those hourly employees when their jobs truly require them to be available on an instantaneous basis even while off-duty.
4. Some employees may need to have these phones while working but not while off-duty.  In these cases, issue a written policy prohibiting these employees from using their devices off-duty or institute a requirement that they reimburse the employer for personal use of the devices.  Another possibility is to require the employee to leave the phone at their job site, whereby they pick it up at the beginning of their work shift and leave it at the end.

The best advice is to develop a comprehensive written policy on the use of these devices so that employees are on clear notice of their entitlements and of their employer’s expectations of them.

LCW provides sample forms of Sample Electronic Communications Resources Policy and Authorization for Release of Information by Electronic Communications Service Provider in our Privacy Issues in the Workplace workbook for public agencies.  Additionally, LCW discusses the FLSA and strategies for complying with it in its Public Sector FLSA Compliance Guide workbook.

Keep visiting this website, as we shall update you on the progress of this case as it moves through the court system.

Photo Credit: Verizon Logo by methodshop.com, on Flickr

This guest post was authored by Brian Walter and David Urban

Yesterday, the United States Department of Labor issued a new set of final regulations interpreting various provisions of the Fair Labor Standards Act (“FLSA”).  In 2008, the DOL had proposed revisions to its regulations.  After a notice and comment period in 2008, the DOL has now issued its final regulations that take effect on May 5, 2011.  Although there are several revisions to existing DOL regulations, two are of particular interest to public sector employers.

First, the DOL conspicuously did not change the regulations regarding compensatory time off.  See 29 U.S.C. § 207(o)(5).  The DOL has previously opined that an employer must permit an employee to use comp time on the day requested unless the employer can show the use of comp time by that employee would constitute an undue disruption to its operations.  And the definition of what constitutes an undue disruption is even more onerous for public employers, especially public safety, as the DOL has opined that an employer cannot deny a request to use comp time merely because it would have to pay another employee overtime to backfill the position.  The Sixth and Seventh Circuit Courts of Appeal, have recently agreed with the DOL’s interpretation.

However, the Ninth Circuit, which covers California, and the Fifth Circuit have explicitly rejected the DOL’s interpretation of the FLSA rules for use of compensatory time off as set forth in 29 C.F.R. § 553.25 and in DOL opinions.  Both federal appellate circuits held that that an employer does not need to allow an employee to use accrued comp time on the specific day requested by the employee, but can instead honor the request by providing alternative dates within a reasonable time period after the request to use comp time is made.

Although the DOL had initially proposed changes to its regulations to bring them in line with the Ninth Circuit, the DOL changed its mind and decided to keep its existing regulations in light of the clear split in the federal appellate courts.  However, the DOL expressed its belief that its regulations, namely 29 C.F.R. § 553.25, and the Sixth and Seventh Circuit cases were the correct interpretation of the law.  The result of the DOL’s inaction is continuing confusion and threats of litigation over the use of comp time for public employers in many parts of the country that will only be resolved if the US Supreme Court decides to review the issue.  However, California public employers can breathe easier and continue to follow the Ninth Circuit’s decision in Mortensen v. County of Sacramento, which permits them to define a reasonable window of time in which an employee may use comp time instead of permitting the employee to use comp time on the specific day demanded by the employee.

The second important aspect of the new regulations is the elimination of what had been a stumbling block in analyzing whether fire protection personnel qualified for 29 U.S.C. § 207(k) work schedules of between 7 and 28 days.  The existing DOL regulations include a requirement that a public safety employee must spend no more than 20% of his or her time engaging in work that is not fire protection or law enforcement work.  The revision to section 553.212 eliminates the 20% rule for fire protection personnel, but retains the rule for law enforcement personnel.

The DOL agreed with various court decisions that the 20% rule is obsolete for fire departments in light of the 1999 amendment to the FLSA, 29 U.S.C. § 203(y), which defined who is an “employee in fire protection activities.”  Section 203(y) requires a fire department employee who is trained in fire suppression to have “responsibility” and “legal authority” to engage in fire suppression, but not does not require that the employee actually fight fires or engage in related activities for any particular percentage of time in order to qualify.  Since medical work is a fire protection activity if performed by a trained firefighter, perpetuation of the 20% rule caused confusion and unnecessary litigation over who qualified for a 7(k) work period, as fire departments have evolved so that often a majority of the calls received are medical in nature.  Although the 20% rule has been eliminated for fire protection personnel, public agencies must still ensure that law enforcement personnel do not spend more than 20% of their time performing non-law enforcement activities. 

The United States Supreme Court’s recent decision in Kasten v. Saint-Gobain Performance Plastics, Corp. makes clear that an employee need not make a written complaint, but can make an oral complaint, in order to be protected against retaliation for filing a complaint regarding violations of the Fair Labor Standards Act (FLSA).  However, did the Supreme Court answer the question,

to whom does the oral complaint have to be made in order to be protected?

Kevin Kasten worked at Saint-Gobain’s factory where employees were required to enter a changing room to put on protective gear before they could proceed to the next room where they could clock-in. Kasten verbally complained to his supervisors and human resources that it was illegal for the time clocks to be where they were located because it precluded the workers from being compensated for their time spent donning their protective gear and if challenged in court, the company would “lose.”  The company later disciplined and then terminated Kasten which he alleged was in retaliation for his verbal complaints.

Kasten brought an action against Saint-Gobain and the federal district court found that the company violated FLSA by placing time clocks in a location that prevented workers from receiving credit for the time they spent donning and doffing work-related protective gear. Kasten also brought a claim for retaliation in violation of the FLSA.  Both the district court and the Seventh Circuit Court of Appeals found that the FLSA did not protect verbal complaints. 

The FLSA’s anti-retaliation provision forbids employers from discharging or otherwise discriminating “against any employee because such employee has filed any complaint.”  The Supreme Court reversed the lower courts, finding that FLSA was intended to protect the “filing” of oral complaints, just as much as written ones. 

The Supreme Court further stated that the phrase, “filed any complaint” “contemplates some degree of formality to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of its business concerns.”

Curiously, though the Court said it did not need to decide whether an oral complaint is protected if it is made only to the employer, rather than to a governmental agency, stating the issue had not been raised in Saint-Gobain’s briefing and was not otherwise a necessary predicate to determining the verbal versus written debate.

In the dissent, Justice Scalia noted that the Court’s majority opinion necessarily implies that the complaint, whether written or oral, may be to the employer, rather than a regulatory governmental agency.  “Surely the word ‘complaint’ in this question must be assigned an implied addressee. It presumably does not include a complaint to Judge Judy.  And the only plausible addressee, given the facts of this case, is the employer.”

Nevertheless, this decision did not make an express finding whether complaints to an employer, rather than to a regulatory governmental agency, are protected against retaliation under the FLSA.