Second Circuit Expands The Scope Of FLSA Protected Activity To Include Oral Complaints To Employer
In a 2-1 decision issued on April 20, 2015, the Second Circuit expanded the scope of protected activity under the Fair Labor Standard Act’s (FLSA) anti-retaliation provision.
The FLSA prohibits retaliation against an employee who “has filed any complaint . . . related to” the FLSA’s provisions. In Greathouse v. JHS Security, Inc., the Second Circuit considered whether an oral complaint of FLSA violations made by an employee to his superior met the FLSA’s definition of “fil[ing] any complaint.” Specifically, the employee complained orally to his supervisor that he had not been paid in several months. The district court entered a default judgment against the employer, but ruled that the facts alleged did not set forth a FLSA action based upon Second Circuit precedent.
The Second Circuit ruled in favor of the employee and overturned a 1993 Second Circuit decision in the process. In the 1993 decision, the Second Circuit held that the phrase “filed a complaint” required both (1) a formal, written complaint and (2) a complaint made to a government agency, not to an employee’s supervisor. Lambert v. Genesee Hospital, 10 F.3d 46 (2d Cir. 1993). The Second Circuit overturned its previous decision for two reasons. First, the Supreme Court held in 2011 that an oral complaint can meet the requirement of “filed a complaint” if it is “sufficiently clear and detailed.” Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011).
Second, the Second Circuit looked anew whether the “filed a complaint” language could apply to oral complaints to an employer, a question the Supreme Court had explicitly declined to consider. The Second Circuit determined that “filed a complaint” could mean an oral complaint to an employer based on the text and purpose of the FLSA as well as the interpretation of that provision by the EEOC and Department of Labor. The Second Circuit remanded the case to the district court for further proceedings.
Judge Korman dissented, arguing that because the Supreme Court did not disturb the Second Circuit’s holding that a complaint had to be made to a government agency, the Second Circuit panel should not revisit that issue. Judge Korman also argued that addressing the question was unnecessary because the oral complaint at issue would not have met Kasten’s standard of being “sufficiently clear and detailed.” In addition, the plaintiff had already recovered damages on his state law retaliation claim.
The decision brings the Second Circuit into alignment with the other federal circuits that have addressed this issue. It also serves as a reminder to employers that oral complaints made within the chain of command can, in some circumstances, serve as the basis for a retaliation claim.