Please ensure Javascript is enabled for purposes of website accessibility

‘Amorphous’ mention of wage violations not protected activity

Virginia Lawyers Weekly//January 24, 2022

‘Amorphous’ mention of wage violations not protected activity

Virginia Lawyers Weekly//January 24, 2022//

Listen to this article

Where a manager made an “amorphous” mention of possible wage law violations and attempted to introduce pay incentives and a bonus program to combat low employee morale, his conduct was not “protected activity” under the Fair Labor Standards Act.


Byron Matthew Johnson sued his former employer, Eldor Automotive Powertrain USA LLC, alleging, among other things, retaliation in violation of the Fair Labor Standards Act, or FLSA, and a breach of his employment contract. Eldor argues that it is entitled to summary judgment because Johnson did not engage in a protected FLSA activity and even if he had, he did not give Eldor sufficient notice that he was participating in an FLSA protected action. Eldor also asserts that Johnson was terminated for cause and therefore his termination did not violate the employment contract.


The question is whether Johnson’s complaints about lack of staffing and requests for incentive pay and overtime for Eldor employees constituted an FLSA protected activity such that Johnson’s activity put Eldor on sufficient notice of its alleged FLSA violation. The court finds that Johnson’s amorphous mention of possible wage law violations and bonus pay proposals are insufficient to warrant protection under the FLSA. The testimony supports a showing that Johnson attempted to introduce pay incentives and a bonus program in order to combat low morale at the facility. These types of activities are not protected FLSA activities.

In addition, Johnson’s advice that Eldor must comply with Virginia law and should look into whether it was violating the FLSA was inadequate to give Eldor notice that Johnson was engaging in an FLSA protected activity or asserting an FLSA violation. Rather, Johnson appeared to be notifying Fabio Piscone (the plant manager) and Giovanni Scafidi (the COO) that Eldor could be at risk of violating wage laws. Johnson’s raising of a possible violation of the FLSA is insufficient to put Eldor on notice. Additionally, Johnson’s statement to staff about needing more manpower is insufficient to prove that Johnson engaged in a protected FLSA activity.

Finally, the court is persuaded by the “manager’s rule” reasoning articulated in other circuits that in order to adequately put an employer on notice, a manager must “step outside his or her role of representing the company” to alert an employer that they are engaging in an FLSA protected activity. While the Fourth Circuit has expressly rejected the application of the “manager’s rule” in the Title VII context, it is silent as to its applicability in the FLSA context.

Applied here, Johnson never stepped outside of his role as a manager to assert an FLSA violation. Rather, he proposed a bonus program and initiative proposal to combat the low morale of his employees. Moreover, even if he advised that Eldor was violating wage laws, that action is consistent with his managerial duty to assist the company in complying with its legal obligations.

Breach of contract

Looking at the facts in the light most favorable to Johnson, a jury could find that he was not grossly negligent in the performance of his duties and that his termination violated the terms of his contract. The facility was understaffed through no fault of Johnson and when Johnson was told that he needed to motivate his team, he tried to do so by suggesting that they receive additional compensation to offset the large number of hours they were expected to work.

His suggestion was met with approval by Scafidi, but nevertheless he was terminated by two other members of the Daleville facility management team, whose explanation for doing so is internally inconsistent. Given these facts, the court cannot find as a matter of law that Johnson was terminated for cause.

Defendant’s motion for summary judgment granted in part, denied in part.

Johnson v. Eldor Automotive Powertrain USA LLC, Case No. 7:20-cv-00642, Jan. 10, 2022. WDVA at Roanoke (Urbanksi). VLW 022-3-006. 27 pp.

VLW 022-3-006

Verdicts & Settlements

See All Verdicts & Settlements

Opinion Digests

See All Digests