Verbal Complaints and the Fair Labor Standards Act: Consequences for Employers

The Fair Labor Standards Act (FLSA) contains an anti-retaliation provision forbidding employers from discharging or discriminating against an employee in any manner because such employee has “filed any complaint or instituted or caused to be instituted any proceeding under or related to the [FLSA].” 29 U.S.C. § 215(a)(3). In a recent decision, the 2nd United States Court of Appeals held the FLSA prohibits retaliation against employees who make verbal complaints to their employer, and that the employee may premise a FLSA retaliation claim on a verbal complaint when 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 Security, Inc., 784 F.3d 105, 107 (2d Cir. 2015) (quoting Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1335 (2011)).

In Greathouse, the employee complained to JHS Security’s president and part-owner that he had not been paid in several months. Allegedly, the president/part-owner responded, “I’ll pay you when I feel like it” and then drew a gun and aimed it at the employee. The employee assumed at that point he had been fired.

Employee alleged he was the victim of several illegal employment practices, including paying wages late, or not at all. The employee did not make any written complaint to his employer. He made a verbal complaint. After his discharge, the employee filed a lawsuit alleging violations of the FLSA for failure to pay proper wages and that the company violated the FLSA by discharging him as retaliation for his complaint to the president/part-owner. Based on these facts, the 2nd Circuit Court of Appeals held a claim for FLSA retaliation may be premised on an employee’s verbal complaints made internally to a supervisor, as long as the complaint is clear and detailed enough for a reasonable employer to understand that the employee’s intention is to assert his/her rights under the FLSA.

What does this mean for employers? Take the factual scenario from Greathouse as an example. While the specific facts of Greathouse are extreme, the basic situation could occur in any workplace. Thus, to answer the question, employers need to carefully consider all complaints from employees concerning employment practices – like payment of wages and payment of overtime, just to name a couple – because such complaints, whether made verbally or in writing, internally or externally, could be the basis of a FLSA claim. Further, should the employer take any actions in response to such a complaint that could be considered retaliatory, there may be a basis for an anti-retaliation claim pursuant to the FLSA.