Secretary of Labor, US Department of Labor v. FNN Company, Inc. et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Lori Chavez-DeRemer, Secretary of
Labor, United States Department
of Labor
v. 	Case No. 1:26-cv-199-PB-AJ
Opinion No. 2026 DNH 024
FNN Company, Inc. and
Ebenezio Kaizer
MEMORANDUM AND ORDER
Before the court is Secretary of Labor Lori Chavez-DeRemer’s motion
for a temporary restraining order (“TRO”) enjoining Defendants FNN
Company, Inc. and Ebenezio Kaizer from retaliating against employees who
assert their rights under the Fair Labor Standards Act, 29 U.S.C. § 201, et
seq. (the “FLSA”). Doc. 3 at 1. Specifically, the Secretary seeks a TRO that
would “restrain Defendants and their agents from continuing to violate
Section 15(a)(3) of the FLSA, 29 U.S.C. § 215(a)(3), and require Defendants to
allow the Secretary to notify Defendants’ employees of their rights and
protections under the FLSA.” Doc. 3-1 at 2. Because the Secretary is unlikely
to succeed in proving Defendants violated Section 15(a)(3) on the present
record, I deny her motion.
Case 1:26-cv-00199-PB-AJ Document 5 Filed 03/23/26 Page 1 of 8

2
I. 	BACKGROUND
Defendant FNN Company, Inc. is a New Hampshire corporation that
provides janitorial services, and Defendant Ebenezio Kaizer is FNN’s owner.
Id. FNN’s employees are janitors who clean retail establishments, including
supermarkets, and “routinely are responsible for cleaning multiple stores
each night.” Id.
On December 15, 2025, the Wage and Hour Division of the United
States Department of Labor (the “WHD”) opened an investigation into
Defendants’ compliance with the FLSA and notified Defendants of the
investigation. Id. WHD met with Defendants on January 2, 2026 and
informed Kaizer that the WHD would be contacting FNN employees for
interviews. Id. The Secretary contends that on January 9, 2026, Kazier sent
an audio message to a WhatsApp group that included FNN employees. Id.
Kaizer’s message, as translated, stated:
Just to let you know, a Brazilian woman from the State will call
you to ask about your work and how many stores you handle. I’m
warning you to avoid problems: don’t say too much. You only
handle two stores, understood? Be brief and objective. Answer
what she says, but don’t go into too much detail, so things don’t get
more complicated for you or for me. Thank you.
Id. at 3. The Secretary alleges that when Kaizer mentioned “a woman from
the State,” he was referring to the WHD investigator. Id.
Case 1:26-cv-00199-PB-AJ Document 5 Filed 03/23/26 Page 2 of 8

3
The Secretary alleges that Kazier’s audio message was an instruction
to employees to provide false information to the WHD investigator. Id. In
support of this contention, the Secretary cites Defendants’ pay records, which
showed that some employees were responsible for cleaning three to five
stores, and highlights the fact that multiple employees who were servicing
more than two stores had received Kaizer’s message. Id.
On the basis of Kaizer’s audio message, the Secretary argues
Defendants have “tried to coerce their employees into providing materially
false information to the WHD” and that these actions constitute a violation of
Section 15(a)(3) of the FLSA, 29 U.S.C. § 215(a)(3). Id. at 5. She seeks a TRO
to restrain Defendants from further violations of Section 15(a)(3). Id. at 2.
II. STANDARD OF REVIEW
Whether construed as a motion for a TRO or for a preliminary
injunction, the same four factors determine whether a court should act to
preserve the status quo in advance of a dispositive ruling. Liu v. Noem, 777
F. Supp. 3d 83, 85-86 (D.N.H. 2025). I must consider (1) “the movant’s
likelihood of success on the merits;” (2) “whether and to what extent the
movant will suffer irreparable harm in the absence of preliminary injunctive
relief;” (3) “the balance of relative hardships, that is, the hardship to the
nonmovant if enjoined as opposed to the hardship to the movant if no
injunction issues;” and (4) “the effect, if any, that either a preliminary
Case 1:26-cv-00199-PB-AJ Document 5 Filed 03/23/26 Page 3 of 8

4
injunction or the absence of one will have on the public interest.” Ryan v. U.S.
Immigr. & Customs Enf’t, 974 F.3d 9, 18 (1st Cir. 2020); see also
Osorio-Martinez v. Att’y Gen., 893 F.3d 153, 178-79 (3d Cir. 2018). The first
factor weighs “most heavily” in this analysis—so much so that a failure to
demonstrate likelihood of success is usually fatal. See Ryan, 974 F.3d at 18.
III. ANALYSIS
The First Circuit has held that “if the moving party cannot
demonstrate that [she] is likely to succeed in [her] quest, the remaining four
factors become matters of idle curiosity.” New Comm Wireless Servs., Inc. v.
SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002). As such, I begin by assessing
the Secretary’s likelihood of success on the merits of her Section 15(a)(3)
retaliation claim.
Under Section 15(a)(3) of the FLSA, it is unlawful for a person to
“discharge or in any manner discriminate against any employee because such
an employee . . . has testified or is about to testify in any . . . proceeding”
under or related to the statute. 29 U.S.C. § 215(a)(3). In order to prove a
retaliation claim under Section 15(a)(3), a plaintiff must show: (1) that the
employee engaged in a statutorily protected activity, (2) the employer
subjected the employee to an adverse action, and (3) the adverse action was
taken because of the employee’s protected conduct. Travers v. Flight Servs. &
Sys., Inc., 808 F.3d 525, 531 (1st Cir. 2015).
Case 1:26-cv-00199-PB-AJ Document 5 Filed 03/23/26 Page 4 of 8

5
To satisfy the second prong of the above test, the challenged action
must be “materially adverse.” Blackie v. State of Me., 75 F. 3d 716, 725 (1st
Cir. 1996). Determining whether an alleged action is materially adverse
“necessarily requires a case-by-case inquiry” and is examined in “objective
terms.” Id. The Secretary encourages this Court to assess the second prong
under the Burlington Northern standard. Doc. 3-1 at 7. Under Burlington
Northern, an action is materially adverse if it “well might have dissuaded a
reasonable worker from” engaging in protected activity. Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citation omitted).1
Here, the Secretary argues that the Defendants’ audio message, which
directed employees to “provide the WHD with false information,” constitutes
an adverse action under Section 15(a)(3). Doc. 3-1 at 7. She advances a theory
of anticipatory retaliation and argues that the message constitutes an
1 	The Secretary concedes that Burlington Northern was a case
interpreting Title VII, not Section 15(a)(3) of the FLSA, and that the First
Circuit has not yet applied the Burlington Northern standard to an FLSA
retaliation claim. Doc. 3-1 at 7 n. 3. However, she argues the standard should
apply because the District of Massachusetts has applied the standard to
Section 15(a)(3) claims, as have six other Courts of Appeal. Id. (citing Scalia
v. F.W. Webb Co., 2021 WL 1565508, at *4 (D. Mass. Apr. 21, 2021); Hollis v.
R&R Rests., Inc., 159 F.4th 677, 688 (9th Cir. 2025); Smith v. Haynes &
Haynes P.C., 940 F.3d 635, 648–49 (11th Cir. 2019); Pettit v. Steppingstone,
Ctr. for the Potentially Gifted, 429 F. App’x 524, 531–32 (6th Cir. 2011)
(unpublished); Noack v. YMCA of Greater Hous. Area, 418 F. App’x 347, 353
(5th Cir. 2011) (unpublished); Mullins v. City of New York, 626 F.3d 47, 53
(2d Cir. 2010); Darveau v. Detecon, Inc., 515 F.3d 334, 343 (4th Cir. 2008)).
Case 1:26-cv-00199-PB-AJ Document 5 Filed 03/23/26 Page 5 of 8

6
implied threat from Kaizer that he will harm employees if they truthfully
participate in the investigation. Id. On the basis of the present record,
however, I cannot determine whether Kaizer’s audio message is an actionable
threat to take adverse action against his employees or an appeal to self
interest to encourage his employees to provide false information to the
investigation. If it is the latter, I do not doubt that I have the power to direct
Defendants to refrain from such actions in the future as part of my ordinary
superintendence authority. However, under the Secretary’s theory, I do not
believe the record is sufficiently strong to show that the audio message is an
actionable threat to take “adverse action” under Section 15(a)(3). Because the
Secretary cannot satisfy prong two of the Section 15(a)(3) standard, she is
unlikely to succeed on the merits of her FLSA claim on the present record.
Although the First Circuit has not yet determined whether the
Burlington Northern standard applies to Section 15(a)(3) retaliation claims, I
will assume that it does when evaluating the Secretary’s argument that the
audio message is an “adverse action.” The message instructed FNN’s
employees to not “say too much,” make allegedly false statements about the
number of stores they cleaned, be “brief and objective,” and “[a]nswer what
[the investigator] says, but [not] go into too much detail.” Doc. 3-1 at 3.
Moreover, as the Secretary highlights, Kaizen warned employees that if
Case 1:26-cv-00199-PB-AJ Document 5 Filed 03/23/26 Page 6 of 8

7
employees went into “too much detail,” things could “get more complicated for
you or for me.” Id.
While I do not dispute that these messages could be unlawful directives
to make false statements to the WHD, I cannot conclude from the message
alone that it qualifies as an actionable threat to take adverse action under
Section 15(a)(3). In some circumstances, a threat to take adverse action to
deter someone from engaging in protected conduct could satisfy the adverse
action requirement. See Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009)
(holding that “the mere threat of harm can be an adverse action, regardless of
whether it is carried out” in a case involving a First Amendment retaliation
claim) (emphasis in original). However, as Burlington Northern instructs,
“the significance of any given act of retaliation will often depend on the
particular circumstances. Context matters.” Burlington Northern, 548 U.S. at
69.
In the absence of additional evidence, I cannot say that the Secretary is
likely to succeed in showing that Kaizen’s audio message “well might have
dissuaded a reasonable worker from” participating in the WHD investigation
of Defendants. Id. at 68. It is unclear whether the audio message contains an
implied threat, and I do not know what, if anything, is being threatened in
the message. Thus, the present record does not contain sufficient evidence to
permit a finding that the Secretary is likely to succeed in proving that a
Case 1:26-cv-00199-PB-AJ Document 5 Filed 03/23/26 Page 7 of 8

8
reasonable worker would have understood the audio message as an
actionable threat to take adverse action against him. I will reevaluate this
issue after the Defendants have appeared.
IV. CONCLUSION
For the foregoing reasons, I deny the Secretary’s motion for a
temporary restraining order without prejudice to her right to seek
preliminary relief on a more fully developed record after the Defendants have
appeared. Doc. 3.
SO ORDERED.
/s/ Paul J. Barbadoro
Paul J. Barbadoro
United States District Judge
March 23, 2026
cc: 	Counsel of Record
Case 1:26-cv-00199-PB-AJ Document 5 Filed 03/23/26 Page 8 of 8