Does a plaintiff’s allegation that he was about to join a pending Fair Labor Standards Act (FLSA) collective (class) action against his former employer, combined with the employer’s knowledge that he was a potential class member, sufficiently constitute being “about to testify” in an FLSA proceeding, such that the former employer’s actions in prohibiting the plaintiff from working for its subsidiary might constitute unlawful retaliation under the Act?

Yes, according to the U.S. Court of Appeals for the Third Circuit in a September 14, 2022 decision. 

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Photo of David T. Wiley David T. Wiley

David T. Wiley is the Knowledge Management (“KM”) Attorney for Jackson Lewis P.C.’s Wage and Hour Practice Group, and is based in the Birmingham, Alabama, office.

Mr. Wiley creates and manages legal and electronic resources and materials to provide innovative client services; serves…

David T. Wiley is the Knowledge Management (“KM”) Attorney for Jackson Lewis P.C.’s Wage and Hour Practice Group, and is based in the Birmingham, Alabama, office.

Mr. Wiley creates and manages legal and electronic resources and materials to provide innovative client services; serves as a resource for other practice group members; monitors and analyzes regulatory and case law developments; and contributes to the firm’s blogs and legal updates. In his knowledge management role, Mr. Wiley draws on more than two decades of training, advising, and representing employers nationwide in federal and state courts and before administrative agencies on a variety of employment-related issues, including collective and class actions and all manner of discrimination and retaliation claims.

Prior to obtaining his MBA and law degrees, Mr. Wiley served six distinguished years as an officer in the United States Navy Supply Corps. While attending law school, Mr. Wiley was the Senior Articles Editor for the Georgia Law Review.

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