Greathouse v. JHS Security Inc., No. 12-4521 (2d Cir. Apr. 20, 2015): The Second Circuit Court of Appeals vacated and remanded the Southern District of New York’s decision dismissing an employee’s wage retaliation claim against his employer. In doing so, the Second Circuit held that oral, internal complaints made to an employer are protected from retaliation under the Fair Labor Standards Act (FLSA).
The plaintiff claimed that his employer retaliated against him after he made a verbal complaint to his supervisor that he had not been paid in several months, upon which the supervisor allegedly responded, “I’ll pay you when I feel like it,” and pointed a gun at the plaintiff. The plaintiff claimed that he understood that this response ended his employment. In a 2011 decision, Kasten v. Saint-Gobain Performance Plastics, the Supreme Court of the United States held that the FLSA shields workers from retaliation for both oral and written complaints, so long as the complaint is “sufficiently clear and detailed for a reasonable employer to understand it . . . as an assertion of [statutory] rights.” Consistent with Kasten and all other circuits, the Second Circuit held that the FLSA’s anti-retaliation provision is not limited to written complaints or complaints to the EEOC. However, the Second Circuit clarified that a “grumble in the hallway about an employer’s payroll” would not qualify for FLSA protection, whereas an oral complaint that clearly put the employer on notice that the employee was asserting statutory rights would qualify for protection. Under this holding, New York employers should ensure that they have clear policies and practices directing their employees to bring any complaints about wages, whether oral or written, to appropriate management.
Dino A. Bovell is a 2014 graduate of the Indiana University Maurer School of Law and is currently awaiting admission to the state bar of New York.