2nd Circuit: Verbal Complaint Sufficient to Trigger Retaliation Protections Under FLSA

Posted by Sean P. CecilMay 22, 20150 Comments

The Fair Labor Standards Act requires payment of at least minimum wage for every hour worked, and time and a half for each hour worked in excess of 40 in a week. The Act also protects workers from retaliation for asserting their rights under the law. Last month the 2nd Circuit Court of Appeals joined other appellate circuits in ruling that an employee's verbal complaint asserting FLSA rights is sufficient to trigger the law's protection against employer retaliation. 

In Greathouse v. JHS Security Inc., a security guard complained to his employer because he had not been paid in months. In response, the boss allegedly pointed a gun at him and told him "I will pay you when I feel like it." Taking that behavior as a constructive discharge, the employee left and did not return to work, instead filing a lawsuit for unpaid wages and retaliation- section 215(a) of the law 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.

Ruling that the worker's verbal complaint was "sufficiently clear" to trigger the protections, the Court of Appeals reversed the trial court order dismissing the retaliation complaint, and also reversed a 20+ year old precedent requiring that a complaint be formally filed with a government agency to trigger retaliation protections. 

 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, as well as a 2011 Supreme Court precedent in Kasten v. Saint-Gobain Performance Plastics Corp., 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.” 

Nice of the 2nd Circuit to catch up with the rest of the country on this issue and remove a roadblock to justice! Too bad in this case that justice was denied by the necessity of pursuing the case to the court of appeals...

Edelstein and Payne's North Carolina employment lawyers have experience prosecuting Fair Labor Standards Act cases for unpaid minimum wage and overtime, as well as retaliation claims under state and federal law. We are available for counseling and representation and can be contacted by telephone or by filling out the online form on our website.