The FLSA And Protected Activity

Earlier today we released a video podcast on what constitutes protected activity under the federal Fair Labor Standards Act (“FLSA”). All of our videos can be found on our video podcast page.

As our paper discusses, a sufficiently specific internal complaint, whether oral or written, is protected from retaliation under the FLSA — except perhaps in the Second Circuit.

In Kasten v. Saint–Gobain Performance Plastics Corp., __ U.S. __, 131 S. Ct. 1325 (2011), the U.S. Supreme Court held that an employee’s oral complaint could fall within the purview of the FLSA’s anti-retaliation provision. The Court expressly declined to address the issue of whether the complaint had to be made to a government agency or whether an internal, intra-company complaint would be covered under the anti-retaliation provision. Id. at 1336. It declined because, although the complaints at issue in Kasten were, in fact, complaints made internally to a private employer, the Court found that the employer failed to raise the issue on appeal. Id.

In Minor v. Bostwick Laboratories, Inc., 669 F.3d 428 (4th Cir. 2012), a case decided about a year after Kasten, the Fourth Circuit Court of Appeals reviewed the district court ruling, issued before Kasten, that the plaintiff’s internal oral complaint did not rise to the level of “protected activity,” under the FLSA. Although the Fourth Circuit did not find the Supreme Court’s decision in Kasten to be controlling, it adopted much of the Court’s reasoning, and concluded that internal complaints, such as the oral one asserted by Minor, could be covered under the FLSA’s anti-retaliation provision. Id. at 437-38. The Fourth Circuit also noted, however, that although an internal complaint could constitute a “protected activity” under the FLSA, not every instance of an employee “letting off steam” would qualify. Id. at 439. Rather, “some degree of formality” is required to constitute “protected activity,” rising to the level where the employer receives “fair notice that a grievance has been lodged and does, or should, reasonably understand that matter as part of its business concerns.” Id. Applying the test articulated by the Supreme Court in Kasten, the Fourth Circuit held that the proper standard to be applied to determine whether an internal complaint constitutes a “protected activity” is whether the complaint was:

• “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 [FLSA]”; and
• “a call for their protection”

Id. The Minor court found that the plaintiff’s allegations were sufficient to satisfy this standard, so as to withstand a motion to dismiss. Therefore, the Court reversed the case, and remanded it to the district court. Id.

In Coberly v. Christus Health, 829 F. Supp. 2d 521 (N.D. Tex. 2011), aff’d, No. 11–11146, 2012 WL 5195970 (5th Cir. Oct. 22, 2012), the employee admitted that he never specifically used the words “Fair Labor Standards Act” or “overtime.” But, the employee claimed he did complain to his supervisor at least four times about not being compensated for time he worked in excess of forty hours in a week. Id. at 526-27. The district court held on summary judgment that such evidence was sufficiently specific to trigger protection under Kasten. Id. On the other hand, in Montgomery v. Havner, 700 F.3d 1146 (8th Cir. 2012), the court affirmed summary judgment against the plaintiff, holding that “[n]o reasonable jury could conclude Montgomery’s discussion with Kathy Havner about the ten-minute deduction was a sufficiently clear and detailed FLSA complaint for the Havners reasonably to understand Montgomery was alleging an FLSA violation.” Id. at 1149.

The Fourth Circuit’s holding in Minor that internal complaints may be covered by the FLSA’s anti-retaliation provision is consistent with the holdings of the majority of the courts of appeals. See, e.g., Kasten v. Saint–Gobain Performance Plastics Corp., 570 F.3d 834, 838 (7th Cir. 2009), rev’d on other grounds, __ U.S. __, 131 S. Ct. 1325 (2011) (“[T]he plain language of [§215(a)(3)] indicates that internal, intracompany complaints are protected.”); Hagan v. Echostar Satellite, LLC, 529 F.3d 617, 626 (5th Cir. 2008) (“We adopt the majority rule, which allows an informal, internal complaint to constitute protected activity under Section 215(a)(3), because it better captures the anti-retaliation goals of that section.”); Lambert v. Ackerley, 180 F.3d 997, 1004 (9th Cir. 1999) (en banc) (finding that § 215(a)(3) covered internal complaints based on its remedial purpose); Valerio v. Putnam Assocs., Inc., 173 F.3d 35, 42 (1st Cir. 1999) (same); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir. 1989) (same); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir. 1984) (same); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir. 1975) (same); see also EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989 (6th Cir. 1992) (holding that an employee’s complaints to her employer were sufficient to trigger protection of the FLSA’s anti-retaliation provision without explaining its rationale). Cf. Brock v. Richardson, 812 F.2d 121, 124–25 (3d Cir. 1987) (holding that, because of the FLSA’s remedial purpose, a retaliatory firing based on an employer’s belief that an employee had filed a complaint – even when he had not – was prohibited by § 215(a)(3)).

The Second Circuit Court of Appeals took a contrary view in Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir. 1993). There, the Second Circuit stated that “[t]he plain language of [Section 215(a)(3)] limits the cause of action to retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to a supervisor.” (citing Romeo, 976 F.2d at 990 (Surheinrich, J., dissenting)). In light of Kasten it seems possible that the Second Circuit Court of Appeals will reverse course, and conclude that internal complaints can qualify as protected activity under the FLSA. However, that remains to be seen. So far, district courts within the Second Circuit have held that Lambert remains good law on this point, even after Kasten. For example, in Hyunmi Son v. Reina Bijoux, Inc., 823 F. Supp. 2d 238 (S.D.N.Y. 2011), the district court granted the defendants’ motion to dismiss, which relied on Lambert, stating:

Defendants argue that Son fails to state a valid retaliation claim under the FLSA because the complaints she made prior to her termination were not made to any governmental authority but were instead informal complaints made internally to her employer. Son argues that the Supreme Court’s decision in Kasten v. Saint–Gobain Performance Plastics has eliminated this argument and abrogated existing Second Circuit law to the contrary.

Son mischaracterizes the holding in Kasten. There, the Supreme Court held that oral complaints to a government agency constitute protected activity under the FLSA, which courts had previously interpreted as applying only to written complaints made to a government agency. The Court specifically refrained from deciding whether the FLSA protects either oral or written complaints made informally to an employer.

As a result, the Second Circuit’s rule holding that complaints to employers do not qualify as a protected activity controls – the FLSA applies only to “retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to a supervisor.” The only retaliatory treatment alleged by Son is her termination following her complaints to Kim and Youn. Therefore, because Son’s complaints were made informally to her employer and not to a government agency, she did not engage in protected activity under the FLSA and so cannot make out a prima facie retaliation claim. For this reason, defendants’ motion to dismiss the retaliation claim is granted.

Id. at 243-44 (footnotes omitted). See also Zhengfang Liang v. Vineet Kapoor, NO. 09-CV-1306 JFB ETB, 2012 WL 5988766, *11 (E.D.N.Y. Nov. 29, 2012) (noting that Lambert‘s holding that internal complaints to employers, as opposed to government authorities, are not protected by the anti-retaliation provision of the FLSA was not altered by the Supreme Court’s ruling in Kasten); Greathouse v. JHS Sec., Inc., NO. 11 CIV. 7845 PAE GWG, 2012 WL 3871523, *8 (S.D.N.Y. Sept. 7, 2012) (same); Neviaser v. Mazel Tec, Inc., No. 1:12–CV–48, 2012 WL 3028464, at *2 (D. Vt. July 25, 2012) (“[T]he Court holds the holding of Lambert—that complaints to supervisors do not suffice as a protected activity—is controlling.”) (citation omitted); Ryder v. Platon, No. 11–CV–4292 (JFB)(ARL), 2012 WL 2317772, at *7–8 (E.D.N.Y. June 19, 2012) (concluding that the rule in Lambert that the anti-retaliation provision does not cover complaints to one’s employer remains valid post-Kasten).

The Greathouse case is currently on appeal to the Second Circuit. The DOL has filed an amicus brief on behalf of Greathouse, urging the Second Circuit to reverse the district court’s decision, as well as its long-standing precedent that internal complaints are not covered by the FLSA’s anti-retaliation provision.

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