Why it matters

What constitutes “fil[ing a] complaint” under the anti-retaliation provision of the Fair Labor Standards Act (FLSA)? According to a new decision from the Second Circuit Court of Appeals, an employee could be entitled to the protections of the statute after he orally complained to a supervisor that he hadn’t been paid in months. Although Second Circuit precedent as well as the statutory mandate to “file” a complaint stood in the employee’s way, the panel overruled its prior case law to find that the FLSA does not limit its scope to workers who file formal, written complaints with government agencies. Instead, opening the courthouse doors to many potential new plaintiffs, the Second Circuit held that although “a grumble in the hallway” about pay policies would not suffice, workers that make an oral or written complaint to an employer that is “sufficiently clear and detailed” may be able to recover under the statute.

Detailed discussion

Darnell Greathouse worked as a security guard for JHS Security Inc. from September 2006 until October 14, 2011. On that day, Greathouse complained to the man he considered his “boss”—the company’s president and part-owner—that he had not been paid in several months.

According to Greathouse, the man responded, “I’ll pay you when I feel like it,” and drew a gun, pointing it at him. Greathouse took the reply to mean that his employment was over. He then filed suit in New York federal court alleging JHS violated both state labor law as well as the Fair Labor Standards Act (FLSA).

When the defendants failed to appear or file an answer, the court entered a default judgment and awarded damages of approximately $30,000. However, the court refused to award damages based on retaliation under the federal statute because Greathouse had not filed a complaint with any government agency and had merely complained orally to his employer.

The district court cited to a 1993 decision from the Second Circuit Court of Appeals in Lambert v. Genesee Hospital (10 F.3d 46) for this proposition. In that case, the federal appellate court ruled that under the FLSA’s Section 215(a)(3), the requirement to “file a complaint” necessitates a “formal” filing with a government entity.

But Greathouse appealed. He pointed to the U.S. Supreme Court’s decision in Kasten v. Saint-Gobain Performance Plastics Corp. (131 S.Ct. 1325 (2011)), where the justices ruled that an oral complaint can serve as a predicate to an FLSA retaliation claim. Appointing an amicus to represent the interests of the employer, the Second Circuit reconsidered the issue—and changed its mind.

“[W]e overrule Lambert to the extent it holds that Section 215(a)(3) requires an employee to have filed a complaint with a government agency as a predicate for an FLSA retaliation claim,” the court wrote. “We conclude that an employee may premise a Section 215(a)(3) retaliation action on an oral complaint made to an employer, so as—pursuant to Kasten—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.’”

However, the justices in Kasten did not address the issue of whether it mattered that the complaint was made to the employer and not a governmental agency. Invoking the remedial intent behind the FLSA, the court said that an “interpretation that excludes clearly stated complaints from protection because they were made to the employer instead of a government agency would run counter to the broadly remedial purpose that the Kasten Court instructed FLSA serves,” concluding that complaints are not required to be made to a government agency.

Given the weight of authority from sister circuits and the Kasten opinion, the Second Circuit looked again at Section 215(a)(3) and found the statutory language “not as plain and ambiguous as it seemed when Lambert was decided. As the Supreme Court explained, ‘even if the word ‘filed,’ considered alone, might suggest a narrow interpretation limited to writings, the phrase ‘any complaint,’ suggests a broad interpretation that would include an oral complaint.’”

The statute itself does not provide that a complaint must be filed “formally,” or exclude from its protections those complaints that are filed “informally,” the court said, nor does it expressly direct that a complaint must be filed with a government agency or any particular entity for protection. The phrase could plausibly be interpreted to include intra-company complaints, the panel noted.

In light of all of these interpretations, the panel found the phrase “filed any complaint” variable in meaning and ambiguous, requiring a review of the FLSA’s statutory purpose and consideration of the interpretations of the agencies charged with enforcing the statute.

As for the statutory purpose, the panel emphasized that “the remedial nature of the FLSA warrants an expansive interpretation of its provisions so that they will have the widest possible impact in the national economy.” Limiting the protections of the statute to employees who make complaints only to government agencies “would discourage the use of desirable informal workplace grievance procedures to secure compliance with the Act,” the panel said, quoting the Kasten court.

Adding to the conclusion: the litigation position by both the Equal Employment Opportunity Commission and the Department of Labor since 1989 and 1999, respectively, that complaints to an employer trigger the protections of the FLSA.

The panel said its interpretation is subject to certain limitations and that whether a complaint was actually filed is a “context-dependent inquiry.”

“In some circumstances, an employer may find it difficult to recognize an oral complaint as one invoking rights protected by FLSA,” the court wrote. “It seems to us inconsistent with Kasten to elevate a grumble in the hallway about an employer’s payroll practice to a complaint ‘filed’ with the employer within the meaning of Section 215(a)(3),” and the decision contemplated “some degree of formality.”

The “employee need not invoke the Act by name, but, as the Court concluded, ‘[t]o fall within the scope of the antiretaliation provision, a complaint must be 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,’” the panel wrote.

Remanding to the federal district court, the panel said it was unclear from the record whether Greathouse’s complaint provided an adequate basis on which to enter a default judgment against JHS on the retaliation claim.

One member of the panel concurred in part and dissented in part, expressing concern about creating new precedent in a case that was not defended.

To read the opinion in Greathouse v. JHS Security Inc., click here.