By Mark Kobata
Jun. 25, 2015
After Darnell Greathouse had not been paid for several months, he complained to the president and part-owner of JHS Security Inc., Melvin Wilcox. Wilcox responded, “I’ll pay you when I feel like it,” and then drew a gun on him, a response that Greathouse considered the end of his employment.
Greathouse filed a lawsuit in the U.S. District Court for the Southern District of New York alleging claims related to unpaid wages and retaliation for his complaint. The court denied Greathouse’s retaliation claim because he had not filed a complaint with a government agency or other prosecutorial authority. The 2nd Circuit Court of Appeals reversed, joining nine other appeals courts to hold that, in light of the U.S. Supreme Court’s decision in Kasten v. Saint Gobain Performance Plastics Corp., 131 S. Ct. 1325, (March 22, 2011), which protects employees’ oral complaints, the Fair Labor Standards Act does not require that a complaint be submitted formally to a government agency. Given that the FLSA’s phrase “filed any complaint” appears next to “instituted any proceeding,” the court said it may be construed as contemplating a “communication (such as an intra-company complaint seeking a change in company practice) that does not ordinarily trigger a ‘proceeding’ (such as an adjudicatory process).” Greathouse v. JHS Security, Inc., No. 12-4521 (April 20, 2015).
IMPACT:Employees may have a valid retaliation claim if an adverse action occurs following an internal complaint.
Mark T. Kobata and Marty Denis are partners in the law firm Barlow, Kobata and Denis, which has office in Beverly Hills, California, and Chicago. To comment, email firstname.lastname@example.org.
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