Second Circuit Rules Oral Complaints to Employers Protected by FLSA

In the 1993 case of Lambert v. Genesee Hospital, the United States Court of Appeals for the Second Circuit interpreted the anti-retaliation provision of the Fair Labor Standards Act to require an employee make a written complaint to a government agency in order to be protected against retaliation under the FLSA. For almost two (2) decades, this stringent standard was applied to FLSA retaliation cases in New York and many other jurisdictions around the county.

In 2011, the United States Supreme Court’s decision in Kasten v. Saint–Gobain Performance Plastics Corp. overruled the requirement that an employee’s complaint about issues covered by the FLSA (such as overtime violations and minimum wage violations) must be in writing, thereby opening the door to employees being protected from retaliation for making complaints in verbal form. Kasten also cast doubt upon, but did not expressly overrule, the notion that the FLSA required employees to complain to a governmental agency in order to receive protection against retaliation under the FLSA.

Last week, the Second Circuit used Kasten to overrule its ruling in Lambert. In so doing, the Second Circuit expressly held that employees who make oral complaints to their employers about FLSA-related issues are protected from retaliation in response for making said complaints. In the case of Greathouse v. JHS Security Inc., Darnell Greathouse approached the owner of JHS Security Inc. to complain about not having been paid his wages for several months. In response, JHS Security Inc.’s owner stated, “I’ll pay you when I feel like it,” and drew a gun and pointed it at Mr. Greathouse. As the Second Circuit put it, “Greathouse understood that response as ending his employment with JHS.”

After JHS Security Inc. did not respond to Mr. Greathouse’s lawsuit, the United States District Court entered a default judgment in favor of Mr. Greathouse on his FLSA claims for unpaid overtime, unpaid wages, improper deductions, but ruled that Mr. Greathouse’s complaint to a supervisor was not protected by the FLSA pursuant to Lambert and refused to enter a judgment or award him any damages on that claim. Mr. Greathouse appealed and the Second Circuit reversed the District Court, holding that complaints to employers (be they oral or written) are protected by the FLSA.

It should go without saying that decisions such as this are positive news for employees. Nobody should lose their job or face negative repercussions simply for going to their supervisor to complain about being paid unlawfully or not being paid at all. If that happens to you, you should consult an attorney immediately.