I enjoy cases with odd facts – and here’s one that unexpectedly came up in the (usually uninteresting) context of a Fair Labor Standards Act retaliation claim – Greathouse v. JHS Security Inc. The boring legal (but important) part of the case is that the U.S. Court of Appeals for the 2nd Circuit has now joined its sister circuits in finding that a claim of retaliation under the FLSA can be based on an oral complaint to a supervisor about an FLSA violation (such as failure to pay the minimum wage or overtime, or improper payroll deductions).
The 2nd Circuit had previously held, in the 1993 case of Lambert v. Genesee Hospital, that an FLSA retaliation claim could only be based on a written complaint that was made to a government agency. The Supreme Court, however, in its 2011 decision in Kasten v. Saint-Gobain Performance Plastics Corp., held that that the complaints could be oral, not just written.
The Supreme Court did not address whether such complaints encompassed internal complaints as well as external complaints to a government agency. Other federal circuit courts, as well as the Department of Labor and the Equal Employment Opportunity Commission (the two agencies with enforcement authority over the FLSA), however, have all found that internal complaints of FLSA violations are protected from retaliation. And the 2nd Circuit has now overruled its Lambert decision, agreeing that the FLSA’s anti-retaliation protections extend to an employee’s oral complaints to a supervisor.
So, (you may be saying) enough with the legal explication! What actually happened in the Greathouse case? The plaintiff was a security guard who worked for the company for over 5 years. During the course of his employment, the plaintiff ‘s paychecks were late or missing, and improper deductions were made from his pay. Although the president and co-owner of the company repeatedly told the plaintiff that he would receive his outstanding checks, they were never given to the plaintiff.
Finally, the plaintiff complained to the president that he had not been paid in several months. According to the plaintiff, the president responded, “I’ll pay you when I feel like it!” And then, without warning, the president pulled out a gun and pointed it at the plaintiff! The plaintiff (quite logically, in my opinion) assumed that meant he was fired. He then sued, asserting claims for his missing and improperly reduced wages, and also claimed that he had been fired in retaliation for making a complaint about those wages – leading to the decision discussed above.
As a management-side employment attorney, I’d certainly advise that there are other, less criminal ways to respond to employee complaints…