FAIR LABOR STANDARDS ACT-PROTECTED ACTIVITY-ABOUT TO TESTIFY-SUBPOENA

September 26th, 2022 by Rieders Travis in Civil Rights

Uronis v. Cabot Oil & Gas Corp., 2022 U.S. App. LEXIS 25727 (3rd Cir. September 14, 2022) (Restrepo, C.J.)  Appellant Matthew Uronis asserts that his job application was denied because his prospective employer anticipated that he would soon be filing a consent to join a then-pending putative collective action under the Fair Labor Standards Act (“FLSA”).  The FLSA prohibits discrimination against an employee because the employee has engaged in protected activity. 29 U.S.C. § 215(a)(3). Protected activity includes having “testified” or being “about to testify” in any FLSA-related proceeding. Id.  In this case we address whether 29 U.S.C. § 215(a)(3), also known as Section 15(a)(3), applies where an employer anticipates an employee will soon file a consent to join an FLSA collective action—but no such “testimony” has yet occurred or been scheduled or subpoenaed. The District Court concluded that being “about to testify” under Section 15(a)(3) requires being “scheduled” or subpoenaed to do so. On that basis, because Uronis did not plead that he was scheduled to testify, the District Court granted Appellees’ motion to dismiss Uronis’ complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). It did not explicitly interpret the meaning of “testify” under Section 15(a)(3). But, by concluding that an employee must be scheduled to do so, the District Court impliedly construed “testify” to only include giving evidence as a witness under oath or affirmation. Applying the guidance from Kasten v. Saint-Gobain Performance Plastics Corporation, 563 U.S. 1, 131 S. Ct. 1325, 179 L. Ed. 2d 379 (2011) and Brock v. Richardson, 812 F.2d 121 (3d Cir. 1987), we hold Section 15(a)(3)‘s “about to testify” language protects employees from discrimination because of an employer’s anticipation that the employee will soon file a consent to join a collective action. Accordingly, for the reasons that follow, we will reverse the District Court’s decision and remand for further proceedings consistent with this opinion.

Attorney Cliff Rieders

Attorney Cliff RiedersCliff Rieders is a Nationally Board Certified Trial Lawyer practicing personal injury law. A large part of his practice involves multi-district litigation, including cases related to pharmaceuticals, vitamin supplements and medical devices. He is admitted in several state and federal courts, as well as the Supreme Court of the United States. Rieders is the past regional president of the Federal Bar Association and is a life member of the distinguished American Law Institute, which promulgates proposed rules adopted by many state courts. He is a past president of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. As a founder of the Pennsylvania Patient Safety Authority, he served on the Board for 15 years.

Not only has Rieders held many highly esteemed, leadership positions, he authored legislation related to the Patient Safety Authority and the Mcare Act, which governs medical and hospital liability actions in Pennsylvania. He authored texts upon which both practitioners and judges rely, including Pennsylvania Malpractice Laws and Forms, and Financial Responsibility Law Issues in Pennsylvania, the latter governing auto and truck collisions in Pennsylvania. In addition, he wrote several books on the practice of law in Pennsylvania regarding wrongful death and survivor actions, insurance bad faith, legal malpractice claims and worker rights, among others. Rieders also serves as a resource to practitioners as a regular speaker for Celesq, an arm of the world’s largest legal publisher, Thomson Reuters West Publishing.

As recognition of his wide range of contribution to his profession and of his dedication to protecting the rights of his clients, he received numerous awards, among them the George F. Douglas Amicus Curiae Award, the Milton D. Rosenberg Award, the B’nai B’rith Justice Award, and awards of recognition from the Pennsylvania Trial Lawyers. [ Attorney Bio ]

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