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Second Circuit Broadens Anti-Retaliation Provisions of Federal Wage Law


Last week, the Second Circuit Court of Appeals in New York (which governs federal claims filed in Connecticut, New York, and Vermont) held that an oral complaint made by an employee to a supervisor can form the basis of a retaliation lawsuit under the Fair Labor Standards Act.  This decision, Greathouse v. JHS Security Inc. et al., No. 12-4521 (2d Cir. 2015) (available here), is a step forward for employees who don’t get paid properly and then suffer when they complain about it.

In this case, an employee who hadn’t been paid for a few weeks complained about the issue orally to his supervisor.  His supervisor then told him, “I’ll pay you when I feel like it,” and then proceeded to pull a gun on the employee.  At this point the employee considered himself to have been fired.  He filed a case in federal court alleging unlawful retaliation, but that part of his case was dismissed.  The court below held that because he hadn’t complained in writing to a government agency, he hadn’t “filed” a claim as required by the anti-retaliation provisions of the FLSA.

Previously, the U.S. Supreme Court had held that an oral complaint is sufficient to trigger the anti-retaliation provisions of the FLSA.  Read more here.  However, the court did not expressly hold that an internal, oral complaint would count as “filing a complaint” and prohibit retaliation.

In Greathouse, the Second Circuit went all the way and held that even an oral complaint to a supervisor about unlawful pay is protected conduct and that an employer may not take retaliatory action against an employee who makes this type of complaint.  This encompasses complaints about minimum wage, getting paid on time, overtime pay, how pay is calculated, and other issues that arise under federal wage law.  It also means that employees do not have to complain in writing or file a complaint with a government agency to be protected by the law.

This ruling makes a huge difference for employees.  Not all employees have the time or resources to write out a formal complaint and submit it, either internally or to the department of labor.  Employees who aren’t as sophisticated might not know the right language to use or what exactly the problem is with how they’re being paid, and this lack of knowledge could dissuade them from making a formal complaint.  They also might not know whom to contact in the case of a large corporation, or if they work off site.  In these circumstances, a supervisor might be the only person with whom they have regular contact.

This conduct should absolutely be protected.  More informal oral complaints are most likely to be made by more vulnerable employees, and these are the employees that the FLSA is intended to protect.  The FLSA provides for the payment of attorneys’ fees to successful plaintiffs, because it is low wage workers who are often taken advantage of and their cases may not entail large financial awards due to their low earnings.  It also specifically allows employees to band together to bring their cases so that they can pool their resources- a nod to the fact that it is often low wage employees who will need to bring lawsuits to protect their rights.  Finally, and most obviously, the law that contains the minimum wage should be interpreted to protect the rights of those less educated employees who are most likely to earn the minimum wage.