Split 2d Cir. Says FLSA Protects Worker Who Made Informal, Oral Pay Complaint

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By Jay-Anne Casuga

April 20 — A New York security guard didn't have to file a written complaint with a government agency as a predicate to bringing a Fair Labor Standards Act retaliation claim against his former employer, a split U.S. Court of Appeals for the Second Circuit ruled April 20.

Vacating a lower court's denial of default damages to Darnell Greathouse on his FLSA retaliation claim against JHS Security Inc., the Second Circuit majority found that the U.S. Supreme Court's decision in Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 17 WH Cases2d 577 (U.S. 2011), overturned the filing requirements the appeals court established in Lambert v. Genesee Hospital, 10 F.3d 46, 1 WH Cases2d 1124 (2d Cir. 1993).

The majority thus remanded Greathouse's case for further proceedings as to whether his informal oral complaint to JHS's president and part-owner, Melvin Wilcox, that he allegedly hadn't been paid in several months met all of Kasten's other requirements, namely that it 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.”

Court Analyzes ‘Filed Any Complaint' Language

Section 215(a)(3) of the FLSA prohibits “any person” from discriminating against an employee who “filed any complaint or instituted or caused to be instituted any proceedings under or related to this chapter.”

In Lambert, the Second Circuit said it construed the phrase “filed any complaint” to mean formal written complaints to a government agency.

However, the Supreme Court in Kasten held that Section 215(a)(3) also protects employees' oral complaints so long as they are sufficiently clear and detailed for an employer to understand that the workers are asserting their FLSA rights. But the justices expressly declined to resolve whether Section 215(a)(3) also protects intra-company oral complaints made to only supervisors.

The Second Circuit observed that Kasten, which involved a complaint lodged with an employer and not a government agency, “must be read as casting serious doubt” on the administrative filing requirement established in Lambert. It added that nine other federal appeals courts have held that Section 215(a)(3) protects employees from retaliation for complaints made to their employers.

As such, the court analyzed Section 215(a)(3)'s plain language and determined that “filed any complaint” doesn't require that a complaint be submitted “formally” to a government agency.

Given that the phrase further appears next to “instituted any proceeding,” the court said it may construe “filed any complaint” as “contemplat[ing] a communication (such as an intra-company complaint seeking a change in company practice) that does not ordinarily trigger a ‘proceeding' (such as an adjudicatory process).”

Additionally, the court found that the FLSA's statutory purpose to protect employees, as well as interpretations from the Labor Department and the Equal Employment Opportunity Commission, also support its definition of “filed any complaint.”

Partially dissenting, Judge Edward R. Korman argued that Kasten expressly left open the issue of whether an informal complaint, oral or written, made to a supervisor can be used to predicate an FLSA retaliation claim and didn't “adopt a broad rule that would cover the facts” of the present case, which was decided on default judgment.

To contact the reporter on this story: Jay-Anne Casuga in Washington at jcasuga@bna.com.

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com.

Text of the opinion is available at http://www.bloomberglaw.com/public/document/DARNELL_GREATHOUSE_PlaintiffAppellant_v_JHS_SECURITY_INC_MELVIN_W.