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.