Reflecting the Supreme Court’s 2011 decision regarding the scope of protected activity under the FLSA, the U.S. Department of Labor has issued Fact Sheet 77A, summarizing the Department’s view of the FLSA’s anti-retaliation provision. Simultaneously, the Department also issued fact sheets addressing retaliation under the FMLA and the Migrant and Seasonal Agricultural Worker Protection Act.
Fact Sheet 77A sets forth the DOL’s assessment of the current legal landscape, including the Kasten decision, holding that the FLSA’s anti-retaliation provision (29 U.S.C. § 215(a)(3)) protects complaining employees “regardless of whether the complaint is made orally or in writing.” The fact sheet goes further, addressing the question the Supreme Court declined to answer in Kasten: namely, whether such written or oral complaints can be protected if made internally, or whether to be protected such complaint must be made formally to the Department of Labor or through a formal filing of a claim (i.e., a lawsuit). In the DOL’s view “most courts have ruled that internal complaints to an employer are also protected.” While this view has been endorsed in multiple forums, notably, courts within the Second Circuit have continued to adhere to the Second Circuit’s 1993 decision in Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir. 1993), holding that a formal complaint is required. Son v. Reina Bijoux, Inc., 2011 U.S. Dist. LEXIS 116417 at * 12-14 (S.D.N.Y. Oct. 7, 2011) citing Lambert.
The DOL’s fact sheet clarifies the Department’s position, but is not “news” to employers who monitor this space or otherwise educate themselves on these issues. Such employers also know that many state laws, including New York’s retaliation provision as modified by the 2011 Wage Theft Prevention Act, provide for greater protections than those contemplated under federal law and discussed in Fact Sheet 77A.