49 F.4th 263
3d Cir.2022Background
- Messenger filed a putative FLSA collective action against Cabot; several employees opted in and the action was pending.
- Uronis was a putative member of Messenger and intended to opt in; he applied for a job with Cabot’s subsidiary GDS in August 2019.
- A GDS manager texted that GDS would not hire any workers associated with Carrie’s because of the ongoing lawsuit; Uronis signed and filed his consent to join days later.
- Uronis sued under 29 U.S.C. § 215(a)(3), alleging he was denied employment because he was (or was about to be) a witness in the Messenger action.
- The District Court granted a Rule 12(b)(6) dismissal, holding “about to testify” requires being scheduled or subpoenaed to testify.
- The Third Circuit reversed, holding that filing a consent to join is protected “testimony” and that “about to testify” covers anticipated or imminent participation when the employer acts because of that anticipation; remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether filing a consent to join a collective action counts as "testify" under § 215(a)(3) | Filing a consent is an informational statement to the court and thus qualifies as testimony | "Testify" should be limited to giving evidence under oath or formal witness testimony | Filing a consent to join is protected as "testify" under § 215(a)(3) |
| Whether "about to testify" requires scheduling/subpoena or excludes anticipated participation | "About to testify" includes imminent or anticipated participation (e.g., intent to opt in) | Protection should require scheduling/subpoena (per Ball) to show certainty/immediacy | "About to testify" covers anticipated/imminent testimony; no scheduling/subpoena prerequisite |
| Whether plaintiff must have performed an "overt act" or given formal notice to trigger protection | Employer’s awareness/perception (e.g., explicit text refusing hire "because of" the lawsuit) suffices as fair notice and causation | Plaintiff failed to allege an overt act or sufficiently particular notice of asserting FLSA rights | Employer perception/anticipation can satisfy notice; here Uronis plausibly alleged fair notice and retaliatory causation |
Key Cases Cited
- Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011) (held oral complaints can be protected under § 215(a)(3) and emphasized remedial, broad interpretation and fair-notice requirement)
- Brock v. Richardson, 812 F.2d 121 (3d Cir. 1987) (interpreted § 215(a)(3) broadly to protect perceived protected activity and prevent chilling effect)
- Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288 (1960) (explained Congress relied on employee complaints for FLSA enforcement and Congress protected reporting to avoid economic retaliation)
- Ball v. Memphis B-B-Q Co., 34 F. Supp. 2d 342 (E.D. Va. 1999) (adopted narrow view that "about to testify" requires scheduling/subpoena; relied on by district court below)
- Halle v. West Penn Allegheny Health Sys. Inc., 842 F.3d 215 (3d Cir. 2016) (discussed collective-action opt-in mechanics and importance of protecting collective enforcement)
- Lambert v. Ackerley, 180 F.3d 997 (9th Cir. 1999) (supports broad reading of § 215(a)(3) to protect informal/internal complaints)