Overtime Retaliation Based on Verbal Complaints to Employer Upheld
Plaintiff Darnell Greathouse complained to the company president that he had not been paid for several months. The employer told him he’d pay when he felt like it, then drew a gun and pointed it at Greathouse. The United States Second Circuit Court of Appeals reversed the lower court’s decision and decided that a verbal complaint to an employer about non-payment of wages and overtime can be illegal retaliation. Greathouse v. JHS Security Inc., No. 12‐4521‐cv (2nd Cir., Apr. 20, 2015)
Section 215(a)(3) of the Fair Labor Standards Act (“FLSA”) makes it unlawful “to discharge or in any other manner discriminate against any employee because such employee has ‘filed’ any complaint *** related to” the FLSA’s provisions. Basing its decision on the U.S. Supreme Court’s opinion in Kasten v. Saint‐Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011), the appellate court overruled its prior decisions which had held that FLSA retaliation had to stem from a written complaint. The Court took a step not taken by the Supreme Court in Kasten and held that the “complaint” specified in section 215(a)(3) can be made to the employer and does not require a complaint filed with a government agency, as long as – pursuant to Kasten – 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.” Kasten, 131 S. Ct. at 1335. The court remanded the case to the district court for reconsideration of plaintiff’s motion for default judgment on his FLSA retaliation claim.