New York Federal Court Reiterates Second Circuit's Narrow View of Protected Activity for Purposes of FLSA Retaliation Claims

Posted on October 17, 2011 by Noel Tripp

As previously discussed, last March the Supreme Court ruled that the FLSA’s anti-retaliation provision protects “informal” complaints, i.e., unwritten complaints alleging violation of the FLSA are protected activity to support a retaliation complaint.  Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (Mar. 22, 2011). However, the Court declined to resolve the open issue of whether the statute protects internal complaints (those made to an employer or agent of the employer) or only external complaints (those made to an agency or filed with a court).  Thus, Federal courts interpreting retaliation complaints under Kasten are left with the pre-existing body of law in their jurisdiction governing whether internal complaints are protected.  A New York federal judge recently reiterated that while many other Circuits protect such internal complaints, Second Circuit courts do not under the FLSA.  Son v. Reina Bijoux, Inc., 2011 U.S. Dist. LEXIS 116417 (S.D.N.Y. Oct. 7, 2011).

In Son, plaintiff’s retaliation complaint presented a strong factual case regarding her protected activity under the FLSA, including an alleged tape recording of a conversation in which managers arguably confirmed that Plaintiff, a non-exempt employee, was being terminated for refusing to work on Saturdays without overtime pay.  The complaint contained further scandalous allegations that defendants predatorily hired Korean-Americans due to their willingness to work in violation of the FLSA.  Observing that the Supreme Court did not elect to resolve the question of the internal complaint question in Kasten, the Court ruled that it was constrained to follow the Second Circuit’s long standing precedent in Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir. 1993), and accordingly held the internal complaint to be unprotected. 

While Son reaffirms the Genessee Hospital doctrine regarding federal protection of internal complaints within the Second Circuit (New York, Connecticut and Vermont), the authority in other jurisdictions is directly contrary.  Furthermore, many State laws, including New York, provide broader protection for employee complaints, an issue not addressed in the Son opinion.  In other words, state law, as well as general employee relations and EEO best practices, must be considered when analyzing the propriety of disciplinary action in regard to an employee who has asserted a workplace complaint regarding wage and hour compliance.

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Supreme Court To Decide Whether Internal Verbal Complaints About Alleged Unpaid Wages Constitute Protected Activity Exposing Employers To Retaliation Claims

Posted on March 24, 2010 by Noel Tripp

The Supreme Court, on March 22, 2010, agreed to answer a question that has divided the circuit courts of appeal—whether the FLSA retaliation provision protects verbal complaints made by employees or only written ones. The Court will review the Seventh Circuit’s decision in Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d 834 (7th Cir. 2009), where the Seventh Circuit held verbal complaints regarding unlawful pay practices do not fall under the protections of the FLSA’s anti-retaliation provision, 29 U.S.C. § 215(a)(3).  The decision follows the Second and Fourth Circuits, which previously held that an employee is not protected from retaliation under the FLSA where the employee has not complained in writing, based on the statutory requirement that the retaliation be in response to a “filing” (Note: the Second Circuit goes even further -- declining to protect internal written complaints and protecting only formal complaints to the DOL or a court). In Kasten, the Seventh Circuit agreed with this interpretation, and held that since Plaintiff’s complaints were “purely verbal”, this was fatal to his claim.  Id. at 838. 

Several circuit courts, including the First, Fifth, Sixth and Ninth, however, have ruled verbal complaints are sufficient. Three judges dissented in the Seventh Circuit’s subsequent decision in Kasten to deny rehearing en banc, citing these cases. Kasten v. Saint-Gobain Performance Plastics Corp., 585 F.3d 310 (7th Cir. 2009). The dissenters criticized the majority's decision, observing: "the [Seventh Circuit] has taken a position contrary to the longstanding view of the Department of Labor, departed from the holdings of other circuits, and interpreted the statutory language in a way that [we] believe is contrary to the understanding of Congress." Id. at 311.

The Supreme Court’s decision in Kasten, whether accepting or rejecting the Seventh Circuit’s employer-friendly approach, will hopefully provide some clarification regarding whether internal verbal complaints are protected under federal law. As always, state laws may (and do) differ.

 

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