In addition to protecting employees from being cheated out of overtime and minimum wages, the Fair Labor Standards Act (FLSA) shields employees from retaliation for “filing a complaint.” 29 U.S.C. § 215(a)(3). However, the question of what it means to “file a complaint” has been somewhat vexing for the Courts, leaving some complaining employees exposed to unprotected retaliation. However, the United States Court of Appeals for the Second Circuit recently permitted a broad reading of that term in Greathouse v. JHS Security, Inc ., which will inevitably lead to greater protection for workers.

Should I Make a Complaint?

If you are being cheated out of minimum and/or overtime wages by your current employer, you have an important decision to make before acting: do you bring it up to your employer before taking legal recourse? As it turns out, the answer really depends on the manner in which you make the complaint to your employer. Many types of complaints can be made: an employee may file a grievance through her union, she may file a written complaint directly with her employer, she may complain orally to a supervisor or human resources, or she may file a complaint with government.

Some, Not All, Complaints are Protected From Retaliation

The United States Supreme Court in Kasten v. Saint-Gobain Performance Plastics Corp. made clear that at least some oral complaints trigger the FLSA’s protection. Under Kasten, in order to be protected from retaliation, the complaint needs to 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.” 131 S. Ct. at 1335. In other words, not just any oral complaint to a supervisor will do. An oral complaint has to be clear and detailed enough for the listener to understand that protected overtime or minimum wage rights are at issue.

Complaints Made Only to the Employer

However, Kasten did not decide one critical issue: who must receive the complaint in order for protection to be triggered? Must the complaint be made to a government agency or may a complaint be made internally? This was the issue most recently decided by the Second Circuit in Greathouse v. JHS Security, Inc. There, the employee made an oral complaint to his supervisor. The Court expressly overruled its prior authority to the contrary and held that complaints made internally may also be protected under the FLSA. This brings the Second Circuit in line with the First, Fourth, Seventh, Eighth and Eleventh Circuits, which have all granted protection for internal complaints.

Bottom Line: Consult an Attorney to Ensure You Maintain Retaliation Protections

The upshot of this for any employee who believes she is the victim of wage theft is to tread carefully before making a complaint. Consulting with an attorney first will help you ensure that your complaint is adequate to trigger retaliation protection. An experienced Hawks Quindel wage and hour attorney can help you work through this. Please contact at (608) 257-0040 if you face this quandary or any other wage and hour issue.

David Zoeller

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