FLSA Prohibits Retaliation Based on Internal Complaints

The Second Circuit Court of Appeals recently held that the Fair Labor Standards Act (“FLSA”) prohibits employers from retaliating against employees who complain to their employer’s about a violation of the FLSA. The FLSA is a federal wage and hour law that, among other things, establishes minimum wage and overtime requirements. The Second Circuit handles federal appeals out of several states, including New York.

The case, Greathouse v. JHS Security Inc., reversed a 1993 Second Circuit ruling to the contrary.  Specifically, in Lambert v. Genesee Hospital the Second Circuit concluded that because the FLSA’s anti-retaliation provision prohibits employers from retaliating against employees who “filed” a complaint, it applies only protects employees who filed a written complaint with a government agency. The opinion in Greathouse expressly overrules Lambert.

Darnell Greathouse worked as a security guard for JHS Security. He made numerous oral complaints to his boss, Melvin Wilcox, because the company was late paying him and took illegal deductions from his salary. For example, in October 2011 Mr. Greathouse complained to Mr. Wilcox because the company had not paid him in several months. In response, Mr. Wilcox told him: “I’ll pay you when I feel like it.” Mr. Wilcox then pulled out a gun and pointed it toward Mr. Greathouse. Mr. Greathouse took this to mean he was fired.

JHS did not respond to Mr. Greathouse’s lawsuit. As a result, the United States District Court for the Southern District of New York entered a default judgment in Mr. Greathouse’s favor. After a proof hearing, the court awarded Mr. Greathouse more than $30,000, which included lost wages and overtime pay. However, relying on Lambert, it dismissed his retaliation claim.

On appeal, the Second Circuit relied heavily on a 2011 United States Supreme Court opinion, Kasten v. Saint-Gobain Performance Plastics Corp.   That case holds that the FLSA’s anti-retaliation provision applies to both oral and written complaints if 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.”

Kasten involved an employee who experienced retaliation after he complained to his supervisor that the company’s time clocks were in a location that prevented employees from getting paid for the time they spent changing into and out of their work clothes. The Supreme Court did not decide whether the FLSA protects employees who make internal complaints because the employer did not properly raise that issue on appeal. I discussed Kasten in a previous article: U.S. Supreme Court Rules FLSA Forbids Retaliation Against Employees Who Make Oral Complaints.

In addition to relying on Kasten, the Second Circuit noted that most other Court of Appeals that have considered the issue have concluded that the FLSA prohibits employers from retaliating against employees who make internal complaints about violations of the statute. The court also relied on the fact that the FLSA is supposed to be interpreted broadly to advance its remedial and humanitarian purposes.

Ultimately, the Second Circuit concluded that the FLSA’s anti-retaliation provision protects employees who complain to their employers about violations of the law if a reasonable employer would understand the employee was claiming that the employer violated the FLSA. Although the employee’s complaint does not have to be formal, there does have to be some degree of formality. For example, the protection from retaliation does not apply to employees who merely make passing comments about a violation of the FLSA. But the Second Circuit made it clear that employees do not have to file a complaint with a government agency to be protected by the FLSA’s anti-retaliation provision.

Accordingly, the Second Circuit remanded the case to the District Court so it can determine whether Mr. Greathouse’s complaint is protected under the FLSA.