Second Circuit Extends FLSA Anti-Retaliation Provision to More Oral Complaints
On April 20, the Second Circuit filled a gap left open by the Supreme Court by extending the Fair Labor Standards Act’s (FLSA) anti-retaliation provisions to oral complaints made to an employer (rather than just complaints made to a government agency). In Greathouse v. JHS Security, Inc., the appeals court cited both Supreme Court precedent and EEOC and DOL statutory interpretations to support this broader reading of the FLSA.
The issue of FLSA protection for oral complaints arises from a March 2011 Supreme Court decision in Kasten v. Saint-Gobain Performance Plastics Corporation that we covered at the time. In that case, an employee repeatedly complained about the location of time clocks and how they prevented employees from receiving credit for the time they spent donning and doffing their protective gear. Following his termination, the employee filed a lawsuit alleging that he was retaliated against in violation of the FLSA. Both the district court and the Seventh Circuit held that an oral complaint did not constitute “fil[ing] any complaint” under the anti-retaliation provision of the FLSA. The Supreme Court reversed, holding that the FLSA’s use of “filed any complaint” encompassed oral as well as written complaints, so long as the complaint was “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.” However, while the Court addressed the form of complaints, it declined to address whether the FLSA covers such oral complaints when they are “filed” solely with a private employer instead of a government agency.
The Second Circuit’s Greathouse decision fills that gap for employers in New York, Connecticut, and Vermont, finding that oral complaints made only to a private employer are protected by the FLSA’s anti-retaliation provisions in the Second Circuit. In the case, the employee claimed he was fired after he complained internally about his employer’s alleged failure to pay wages. After entering default when the defendants failed to appear, the district court concluded that a pre-Kasten case barred Greathouse’s FLSA retaliation claim because he had not filed a complaint with any government agency or other prosecutorial authority. Reversing the pre-Kasten precedent, the Second Circuit concluded that the FLSA’s anti-retaliation provision must be interpreted to encompass “oral complaints made to employers in a context that makes the assertion of rights plain.” Specifically, the court held that a complaint is “filed” for the purposes of the FLSA “when a reasonable objective person would have understood the employee to have put the employer on notice that the employee is asserting statutory rights under the Act,” even if the employee fails to mention the FLSA by name.
The court cited Kasten as its guide, but also noted that both the EEOC (in its Compliance Manual and appellate briefs) and the DOL (in its appellate briefs) had consistently advanced this reading of the FLSA. In addition, the court cited both the First and Ninth Circuits’ adoption of a similarly expansive definition of “to file.”
Employers in the Second Circuit can be certain that oral complaints “filed” with them by employees will trigger FLSA anti-retaliation protections. Although this decision does not resolve the circuit split on this issue, employers everywhere should proceed cautiously when confronted with a possible oral complaint related to wage and hour issues. This decision, combined with the DOL’s aggressive enforcement agenda, serves as a good reminder that employers should ensure that they understand and comply with their myriad obligations under the FLSA and that they take any complaints about wage and hour violations just as seriously as any other employee complaint of unlawful conduct. Further, Greathouse, like Kasten, is another employee-friendly retaliation decision. More than ever, employers should ensure that they fully document the legitimate business reasons for all adverse employment actions.