Oral compliant sufficient for a retaliation claim

In order to bring an FLSA retaliation claim, an employee is required to make the complaint in writing and to a government agency. However, this rule has now changed.

On April 20, 2015, the United States Court of Appeals for the Second Circuit overruled an existing precedent and held that internal complaints made to a supervisor which are oral in nature can serve a basis of retaliation claim under section 215 of FLSA.

In the case of Greathouse v. JHS Sec. Inc., 2015 U.S. App. LEXIS 6437, Plaintiff appealed from a final judgment of the United States District Court for the Southern District of New York (Engelmayer, J.), adopting the Report and Recommendation of a Magistrate Judge (Gorenstein, M.J.), and declining to award damages, following entry of default, to Plaintiff-Appellant Darnell Greathouse on his retaliation claim brought under the Fair Labor Standards Act(“FLSA”), 29 U.S.C. 1 §§ 215(a)(3), 216. Greathouse alleged that his employer retaliated against him in violation of section 215(a)(3) when he orally complained to his employer that he had not received the pay he was due.

The District Court’s ruling against Greathouse turned on the decision in Lambert v. Genesee Hospital, 10 F.3d 46 (2d Cir. 1993), which held that making an informal oral complaint to a supervisor did not amount to “filing a complaint” and therefore was not protected by the statute. The Court concluded that the Supreme Court’s decision in Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 179 L. Ed. 2d 379(2011), which held that an oral complaint can serve as a predicate to an FLS Aretaliation claim, casts doubt on the continued validity of ruling in Lambert. Accordingly, the court overruled Lambert insofar as Kasten has not already done so. The judgment of the District Court was vacated and remanded the case for further proceedings consistent herewith.

Upon further proceedings, the United States Court of Appeals for the Second Circuit held that the district court erred in declining to award damages, following entry of default, to an employee on his retaliation claim brought under 29 U.S.C.S. 1§§ 215(a)(3) and 216 because the court based its decision on Lambert v. Genesee Hospital, 10 F.3d 46 (2d Cir. 1993), which was vacated, and the employee could premise a § 215(a)(3) retaliation action on an oral complaint made to an employer, so long as the complaint was sufficiently clear and detailed for a reasonable employer to understand it.