Court Expands Scope of Protected Activity for Retaliation Claims

Following the US Supreme Court's decision in Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011), which addressed the legal sufficiency of oral complaints regarding pay practices (as opposed to written) as "protected activity" for purposes of the anti-retaliation provision in the Fair Labor Standards Act (FLSA), 29 U.S.C. § 215(a)(3), courts within the Second Circuit were asked to reexamine the validity of the longstanding precedent established in Lambert v. Genesee Hosp., 10 F.3d 46 (2d Cir. 1993), that internal—as opposed to formal—complaints did not constitute protected activity. 

Courts largely found that internal complaints remained insufficient as a matter of law under Lambert, because the question raised in Kasten (written versus oral) differed from that addressed by the Second Circuit (internal versus formal). See, e.g., Landaeta v. N.Y. & Presbyterian Hosp., Inc., 2014 U.S. Dist. LEXIS 27677 (S.D.N.Y. Mar. 4, 2014). Now, one of these decisions has been reviewed on appeal and reversed by the Second Circuit—Greathouse v. JHS Sec., 2015 U.S. App. LEXIS 6437 (2d Cir. Apr. 20, 2015).

Lambert v. Genesee Hospital

In Lambert, three female employees sued claiming their employer retaliated against them in violation of the Equal Pay Act, a statute codified as part of the FLSA, when it promoted a male employee over one of the plaintiffs because of her complaints to her supervisor about unequal pay. The Second Circuit read § 215(a)(3) to require that an employee pursuing a claim for unlawful retaliation do more than voice an equal pay complaint to a supervisor. To demonstrate an FLSA retaliation claim, the Second Circuit held that a filed complaint must be "formal"—a requirement the court later interpreted to require (1) a written complaint, which is (2) filed with a government agency.

Contrary to Lambert, the First, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuit Courts all have held that § 215(a)(3) covers employees who make complaints to their employers.

Kasten v. Saint-Gobain Performance Plastics Corp.

Almost 2 decades after Lambert, the US Supreme Court granted certiorari in Kasten to resolve the conflict among the circuits regarding whether an oral complaint is protected by § 215(a)(3).The question in Kasten arose from an employee's oral complaints to the shift supervisor and to other employees that their employer was failing to compensate them for time spent donning and doffing their work-related protective gear, thereby violating the FLSA. The US Supreme Court ultimately held that § 215(a)(3)'s "filed any complaint" language encompassed oral complaints, so long as the complaint is "sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection."

Greathouse v. JHS Sec.

In Greathouse, the plaintiff complained to his supervisor that he had not been paid in several months. His supervisor responded, "I'll pay you when I feel like it," and drew a gun and pointed it at the plaintiff. Understanding the supervisor's response as ending his employment, the plaintiff filed his complaint in a New York federal court alleging, inter alia, that his employer had effectively discharged him in retaliation for his complaint. After defendants failed to appear and file an answer, the clerk of court entered defaults against them, and the district court referred the matter to a magistrate judge to evaluate the plaintiff's damages. The magistrate judge concluded that Lambert barred an award on the retaliation claim because the plaintiff had merely confronted his employer to demand his missing wages but had not filed a complaint with any government agency. The district court adopted the magistrate judge's conclusions.

On appeal, the Second Circuit Court of Appeals ultimately concluded that, to the extent the rejection of the retaliation claims in Lambert turned on the oral nature of the complaint, Kasten rejected Lambert's analysis. Although the Kasten court refrained from addressing the second factor of the Lambert analysis—that the complaint must be directed to a government agency, and not merely to a supervisor—the Second Circuit overruled Lambert to the extent it held that § 215(a)(3) required an employee to have filed a complaint with a government agency, finding that such a reversal of the Lambert decision was consistent with Kasten, the weight of authority in the sister circuits, and the consistently held position of the Secretary of Labor and the Equal Employment Opportunity Commission.

Therefore, an employee may premise a § 215(a)(3) retaliation action on an oral complaint made to an employer so long as it complies with Kasten's requirement that the complaint be "sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection." Although the court declined to define the exact contours of the standard, it noted that "a mere passing comment" would not constitute a sufficient oral complaint. In dissent, District Judge Edward R. Korman disagreed with the majority's view that the holding Kasten constituted a valid basis to revisit the prior Circuit panel's ruling in Lambert.

What Does It All Mean?

Greathouse changes the application of federal law within the Second Circuit (New York, Connecticut, and Vermont). In New York, due to the anti-retaliation protections provisions of the New York Labor Law, practically, potential employer liabilities may not be greatly increased. Employers must continue to respond to workplace complaints by reference to all applicable laws, workplace rules, and policies.