2d Circuit says FLSA complaint does not have to be in writing

The Court of Appeals holds that, in order to bring a retaliation claim under the Fair Labor Standards Act, plaintiffs are not required to complain about pay disparities in writing; a verbal complaint to management is enough. This ruling repudiates a Second Circuit case from 1993.

The case is Greathouse v. JHS Security, decided on April 20,  nearly two years after oral argument. In Lambert v. Genessee Hospital, the Second Circuit 22 years ago said these claims required a formal complaint to a government agency. But in 2011, the Supreme Court ruled in Kasten v. Saint-Gobain Performance Plastics, 131 S. Ct. 1325, that "filing a complaint" under the FLSA includes oral as well as written 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."

The Supreme Court tells the Second Circuit what to do, so the Second Circuit has no choice but to declare the Lambert ruling dead and gone. Other Circuits have already done this. The Second Circuit (Pooler, Carney and Korman [D.J.]) notes that either other Circuit Courts have said the FLSA protects workers from retaliation for their complaints made to employers. In hindsight, the Second Circuit says, the Court of Appeals in 1993 probably got it wrong in any event, and "we now conclude that the statutory language is not as plain and unambiguous as it seemed when Lambert was decided." The FLSA does not require "formal" complaints, and it also does not say plaintiffs have to file anything with a governmental agency. Moreover, "filed any complaint" may be interpreted to include intra-company complaints.

This interpretation is also consistent with the FLSA's statutory purpose, intended "to correct and as rapidly as practicable to eliminate labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers." Since "the government cannot directly monitor every employer's payroll, FLSA also creates an enforcement mechanism that relies in significant part on employees' complaints." The revised FLSA interpretation allows pay disparity complaints to be resolved informally, quickly and without government red tape, before the employees have lost significant wages or benefits.

This ruling has a few caveats. Employers cannot be expected to interpret all workplace complaints as FLSA complaints. The proverbial water cooler grievance probably doesn't count. In Kasten the Supreme Court said:

“a complaint is ‘filed’ [only] when a reasonable, objective person would have understood the employee to have put the employer on notice that the employee is asserting statutory rights under the Act.” The employee need not invoke the Act by name, but, as the Court concluded, “[t]o fall within the scope of the antiretaliation provision, a complaint must 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.” 

The Second Circuit declines to define the exact contours of that standard, but it does say that the Kasten test would "exclude from the concept of 'fil[ing a] complaint' a mere passing comment."