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Saturday, September 12, 2020

Coronavirus Update 9-11-2020: The anatomy of a losing legal argument


Deborah Kofler worked for Sayde Steeves Cleaning Service as a residential and commercial cleaner. Beginning on April 1, Kofler requested paid leave under the Families First Coronavirus Response Act to care for her two minor children who were at home beacause of COVID-19 related school closures. One week late Sayde terminated her employment.

Kofler sued for retaliation under the Fair Labor Standards Act.

In responding to Kofler's lawsuit, Sayde sought dismissal, arguing that Kofler is alleging retaliation under the FFCRA and did not plausibly allege that she engaged in protected activity under the FLSA.


Although the FLSA and FFCRA are different statutes, retaliation for asserting rights under the FFCRA violates the FLSA. … Under the FFCRA, "An Employer who discharges, disciplines, or discriminates against an Employee in the manner described in subsection (a) is considered to have violated section 15(a)(3) of the FLSA, 29 U.S.C. 215(a)(3), and shall be subject to the enforcement provisions relevant to such violations set forth in sections 16 and 17 of the FLSA, 29 U.S.C. 216, 217." … Thus, retaliation claims regarding the FFCRA may be brought under the FLSA.

In other words, because the plain language of the FFCRA makes it clear that aggrieved employees are to challenge FFCRA retaliation under the anti-retaliation provisions of the FLSA, Kofler properly pleaded her FFCRA retaliation claim.

It helps to read the actual statute at-issue before you make a legal argument for dismissal.

* Image James Hoyt / CC BY