Florida’s Third DCA (Once Again) Narrowly Construes Protected Activity Under The FLSA

Defense lawyers should always remove Fair Labor Standards Act cases to federal court, right?

I thought so until last October, when Florida's Third District Court of Appeals, relying on the U.S. Seventh Circuit Court of Appeals' decision in Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d 834, 838-40 (7th Cir. 2009), ruled that to "file" a complaint under the FLSA, the employee must complain in writing. See Alvarado v. Bayshore Grove Mgmt., LLC, 2010 Fla. App. LEXIS 15020 (Fla. 3d DCA 2010). This decision was at odds with precedent in the U.S. Court of Appeals for the Eleventh Circuit (which covers Florida, Georgia, and Alabama). I wrote a blog post at the time recommending that defense attorneys reconsider their practice of removing FLSA retaliation cases to federal court. If the employee did not make a written complaint, the employer was probably better off in state court, where the employer could argue that the employee did not engage in protected