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On April 20, 2015, the U.S. Court of Appeals for the Second Circuit ruled in Greathouse v. JHS Security Inc. that internal complaints to an employer are now protected from retaliation under the Fair Labor Standards Act ("FLSA"). This decision overrules the court's long-standing precedent that an employee's complaint must be made to a governmental agency in order to qualify for protection under the FLSA's anti-retaliation provision. In doing so, the Second Circuit joined the weight of authority from its sister circuits that have already adopted similar broad interpretations of the scope of the FLSA's anti-retaliation provision.
The FLSA makes it unlawful for an employer to retaliate against any employee because the employee "filed any complaint" related to acts prohibited by the FLSA. In Lambert v. Genesee Hospital, the Second Circuit initially interpreted the scope of this phrase to include only written complaints filed with a government agency. In 2011, however, the U.S. Supreme Court in Kasten v. Saint-Gobain Performance Plastics Corp. rejected this narrow interpretation and held that the FLSA's anti-retaliation provision encompasses both oral and written complaints, so long as the complaint is sufficiently clear and detailed for an employer to recognize the complaint as an assertion of FLSA rights. While Kasten resolved the issue of the form of the complaint, it declined to address where the complaint must be "filed" in order to be actionable.
The Second Circuit has now resolved this gray area for employers operating in its jurisdiction—i.e., New York, Connecticut and Vermont. In Greathouse, the plaintiff claimed he was retaliated against in violation of the FLSA when his employment was terminated after he complained internally about the alleged nonpayment of his wages. Taking the opportunity to revisit its analysis in Lambert in light of guidance provided by Kasten, the Second Circuit evaluated the statutory purpose of the FLSA and concluded the FLSA's anti-retaliation provision must be interpreted to encompass "oral complaints made to employers in a context that makes the assertion of rights plain." Specifically, a complaint is "filed" for the purposes of the FLSA "when a reasonable objective person would have understood the employee to have put the employer on notice that the employee is asserting statutory rights under the Act." The employee need not invoke the FLSA by name in order to claim its protection.
The court's analysis was not only guided by the discussion in Kasten, but also similar opinions issued in other federal circuits as well as the administrative interpretations adopted by the Equal Employment Opportunity Commission and the Secretary of Labor, the two administrative bodies charged with enforcing the FLSA. This decision therefore brings the Second Circuit in alignment with other authorities that have addressed this issue.