Quick tip: An oral complaint about an alleged employment law violation is just as valid as an official, written one.
We recently saw confirmation of that in Greathouse v. JHS Security Inc. A look at the case:
Darnell Greathouse worked as a security guard for JHS Security Inc. His boss was Melvin Wilcox, president and part-owner of JHS. During his employment with JHS, Greathouse was, according to court papers, the victim of a number of improper employment practices, including non-payment and late payment of wages, and improper payroll deductions.
Although Wilcox repeatedly told Greathouse that he would receive his outstanding paychecks, the checks never arrived.
Finally, Greathouse complained to Wilcox that he had not been paid in several months. Wilcox responded, “I’ll pay you when I feel like it,” and, without warning, drew a gun and pointed it at Greathouse.
Greathouse took that encounter as a signal that his employment with JHS was at an end.
Greathouse later filed a complaint in the U.S. District Court claiming various FLSA and New York State law violations, including missing and improperly reduced wages and retaliation for complaining about not getting paid.
After neither party appeared or filed an answer, the clerk of court entered defaults against both. The District Court then referred the matter to a magistrate judge to evaluate Greathouse’s claims for damages.
The Magistrate Judge recommended that the district court enter a damages award in the total amount of $30,658.50, plus prejudgment interest, for Greathouse’s claims for unpaid overtime, unpaid wages, improper deductions, and liquidated damages.
As to the retaliation claim, however, the Magistrate Judge concluded that since Greathouse had not filed a complaint with any government agency or other prosecutorial authority — but had merely confronted his employer in person to demand his missing wages – his FLSA complaint was invalid.
The district court agreed.
Bowing to the High Court
But things were different when the case got to federal appeals court. There, the judges — which had previously held that an oral complaint was valid only if it was made directly to a government agency — bowed to the judgment of the Supreme Court ruling in Kasten v. Saint-Gobain in 2011.
In that case, the court held that an oral complaint is protected by FLSA’s anti-retaliation provision if 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.”
And in the Greathouse case, the complaint fit the criteria. So the case is remanded to the district court to hear Greathouse’s lawsuit for retaliation.
Ignore oral complaints at your peril
The takeaway from this decision? Here’s some guidance from attorneys Esteban Shardonofsky and Howard M. Wexler from Seyfarth Shaw:
Following Kasten, and now Greathouse, it is even more important for employers to be sensitive to employees’ intra-company oral as well as written complaints regarding wages, overtime, and hours worked. Managers and supervisors should be trained to recognize complaints under the FLSA and corresponding state laws and to respond to them appropriately.
Whether an internal complaint rises to the level of protected activity is a context-specific inquiry. While the courts continue to assert that there are no “magic words” that an employee must use to assert a complaint and that generalized statements or complaints regarding pay practices may not rise to the level of protected activity under the FLSA (or even under the National Labor Relations Act), this should not embolden employers to ignore vague complaints.
After all, although you may believe today that a particular complaint is mere “venting” or “blowing off steam,” a court or a jury may later disagree. Of course, following an employee’s complaint, employers need to ensure that any adverse action is based on legitimate, non-retaliatory reasons and not in response to the complaint.