On April 20, 2015, the United States Court of Appeals for the Second Circuit reversed a long-standing precedent when it held in Greathouse v. JHS Security Inc., that an internal oral complaint could be sufficient to demonstrate protected activity and form the basis for a retaliation claim under the Fair Labor Standards Act ("FLSA"). While this change altered over 20 years of precedent in the Second Circuit, it is consistent with how most other Circuits already interpret the FLSA retaliation provision.
The facts are fairly simple and straightforward. The Plaintiff worked as a security officer for over five years for a security company in New York, from 2006 to October 2011. In October 2011, Plaintiff told his boss that "he had not been paid in months." His boss responded by pointing a gun at him and stating, "I'll pay you when I feel like it." Plaintiff perceived this as a constructive discharge, and stopped working for the company. He then sued in the Southern District of New York for, among other things, FLSA violations and retaliation. Plaintiff brought his claim under Section 215(a)(3), which makes it unlawful "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint ...related to" FLSA protections.
Although the Defendants defaulted, the district court dismissed Plaintiff's retaliation claim because the oral complaint that Plaintiff had made to his employer was insufficient to demonstrate protected activity under Second Circuit precedent from 1993. That case, Lambert v. Genesee Hospital, held that compliance with the language in the FLSA anti-relation provision regarding "filing any complaint" required a formal written complaint to a government agency.
The Plaintiff appealed to the Second Circuit, arguing that an oral complaint to his employer constituted protected activity under the FLSA. In reaching its decision, the Second Circuit analyzed the FLSA's statutory purpose, legislative history, language and its record of interpretation by the primary enforcement agencies. The Second Circuit also recognized that Lambert was at odds with the United States Supreme Court decision in Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325 (2011), which held that oral complaints were adequate, so long as the complaint is "sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection." As a result, the Second Circuit found that Lambert was no longer viable and would likely be reversed by the Supreme Court.
In summary, the Second Circuit held that an oral complaint to the employee's employer that was "sufficiently clear" as required by the Supreme Court's holding in Kasten, was protected activity that could give rise to a claim for retaliation under the FLSA. Importantly, the Second Circuit noted that an oral complaint must be more than a mere grumble in the hallway or a passing comment to suffice as a complaint under the FLSA.
Since this represents a new legal standard in New York, Vermont and Connecticut, employers in these jurisdictions should be reminded that oral complaints (not just written complaints) can suffice for a retaliation complaint under the FLSA.
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