COMMENT
Shooting the Messenger: How Enforcement of FLSA and ERISA Is Thwarted by Courts' Interpretations of the Statutes' Antiretaliation and Remedies Provisions
Jessica Barclay-Strobel* 
58 UCLA L. Rev. 521

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Abstract

Two pillars of employment law—the Fair Labor Standards Act (FLSA) and the Employee Retirement Income Security Act (ERISA)—rely on employee complaints to detect and cure violations by employers. However, enforcement of these statutes is undermined by three circuit splits that place employees with personnel duties in an unenviable position: While their job duties require them to report FLSA and ERISA violations, they often are not protected from retaliation when fulfilling these duties. First, some employees are left unprotected by a circuit split over whether FLSA’s antiretaliation provision protects internal complaints, that is, complaints made by one employee to another, usually a supervisor, about a potential employer violation. Yet even among those circuits that protect internal complaints, several circuits adopt an exception that excludes employees with personnel duties from FLSA protection. This circuit split over FLSA has recently metastasized to ERISA, resulting in a second circuit split over whether ERISA protects internal complaints. The problem is compounded by a third circuit split over whether ERISA provides any monetary remedy—specifically backpay—to a victim of retaliation. Certain circuits’ holdings that backpay is unavailable under ERISA, combined with ERISA’s preemption of state laws that offer more generous remedies, leave some plaintiffs with no monetary relief for retaliation. This Comment fills a void in legal scholarship by proposing the following solution. First, it argues that the text of FLSA is at least ambiguous regarding whether the statute protects internal complaints, including those made by employees with personnel duties, but that the legislative history clearly militates in favor of such protection. Next, it argues that protection of such complaints under FLSA will likely lead to their protection under ERISA. But because this solution forces employees who report ERISA violations to suffer the complete preemption of their state law remedies, this Comment also posits a legal theory—equitable restitution—under which ERISA remedies can include monetary relief.


* Articles Editor, UCLA Law Review, Volume 58. J.D. Candidate, UCLA School of Law, 2011.

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