After Second Circuit Decision, Oral Complaint to Employer May Support FLSA Retaliation Claim

Under the federal Fair Labor Standards Act (“FLSA”), it is unlawful to discharge or in any other manner discriminate against any employee because such employee has filed any complaint … related to” the FLSA. Previously, the Second Circuit held that only an employee who actually filed a formal written complaint with a government agency was able to pursue a claim for unlawful retaliation under the FLSA. Thus, informal oral complaints to a manager or supervisor about improper pay practices were not sufficient to support a retaliation claim.

Last week, however, the Second Circuit issued a decision that greatly departed from its earlier position and significantly expanded the scope of protected activity under the FLSA’s anti-retaliation provision. The case was Greathouse v. JHS Security.

In that case, Greathouse worked as a security guard for JHS, a NYC-based security company. At various times during the course of Greathouse’s employment, JHS failed to pay him on time or simply did not pay him at all. On one occasion, Greathouse complained to his boss that he had not been paid in several months. His boss allegedly responded, I’ll pay you when I feel like it,” and, without warning, drew a gun and pointed it at Greathouse. Greathouse interpreted this response as ending his employment. Two weeks later, Greathouse filed a lawsuit alleging that his employer effectively discharged him in retaliation for his complaint about unlawful wage practices.

The lower court dismissed Greathouse’s retaliation claim on the basis that he never filed a complaint,” as that phrase previously has been interpreted by the Second Circuit. But after the case was appealed, the Second Circuit overturned its earlier precedent and ruled in favor of Greathouse. Notably, the Second Circuit held that an informal oral complaint to a supervisor regarding improper wage practices may serve as a predicate to an FLSA retaliation claim, 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.”

In light of this recent decision, employers cannot simply disregard oral complaints about wage practices raised internally as they may be sufficient to support a future claim for retaliation.