The Fair Labor Standards Act of 1938, as amended, 29
U.S.C. §§ 201-219 ("FLSA"), sets forth employment rules relating
to minimum wages, maximum hours, and overtime compensation. Section 15(a)(3) of the
FLSA is an anti-retaliation provision that prohibits employers from, among
other actions, "discharg[ing] or in any other manner discriminat[ing] against
any employee because such employee has filed any
complaint." 29 U.S.C. § 215(a)(3).
In March 2011, in Kasten v. Saint-Gobain Performance Plastics Corporation,
2011 U.S. LEXIS 2417 (March 22, 2011) (Breyer, J.), the U.S. Supreme Court, by
a 6-2 vote, held that oral, as well as written, complaints by employees
may give rise to a claim under section 15(a)(3) of the
FLSA. In other words, the Kasten Court held that employers may not
fire or otherwise retaliate against workers who orally complain
about violations of minimum wage or overtime pay laws.
The U.S. Supreme Court's Kasten decision
overruled precedent in the U.S. Court of Appeals for the Second Circuit
(the federal court of appeals whose decisions bind federal trial courts situated
in New York, Connecticut, and Vermont) holding that the FLSA's antiretaliation
provision does not cover informal complaints to supervisors. See Lambert v. Genesee Hosp., 10 F.3d 46, 55-56 (2d Cir.
1993), overruled by Kasten v. Saint-Gobain Performance
Plastics Corporation, 2011 U.S.
In a lawsuit related to Kasten, the U.S. District
Court for the Western District of Wisconsin had
held that Saint-Gobain's Performance Plastics Corporation
("Saint-Gobain" or "the employer") violated the FLSA by not paying
employees for time spent putting on and taking off their work-related
protective gear. In Kasten, the plaintiff employee alleged that,
on multiple occasions, he orally complained to management
at Saint-Gobain that the employer located its time clocks in a location
that prevented workers for receiving credit for time spent donning and doffing
their work-related protective gear. The plaintiff employee further
alleged that Saint-Gobain fired him because he orally protested to Saint-Gobain
officials about the timeclocks.
The District Court, holding that the FLSA did
not protect oral complaints, granted summary judgment in the
employer's favor. The U.S. Court of Appeals for the Seventh Circuit
affirmed. The U.S. Supreme Court's Kasten decision vacated the
Seventh Circuit's judgment and remanded the case to the lower courts to give
the plaintiff employee an opportunity to prove his retaliation claim.
Much as Kasten expands the bases for a
worker's civil claim against his employer for retaliating against the
worker for complaining of the employer's violation of federal minimum wage
or overtime pay laws, the New York Wage Theft Prevention Act,
A. 11726/S. 8380, which took effect on April 9, 2011, broadens
the bases for a civil claim by a worker against his employer for
retaliating against the worker for complaining about the employer's violation
of New York State minimum wage or overtime pay laws. This author's December 2010 post
on the Wage Theft Prevention Act is linked here. This author's March 2010 post on the
(then-pending) Wage Theft Prevention Act is linked here.
Among other revisions, the New York Wage Theft Prevention
Act amends the New York Labor Law by specifying that, to give rise to a civil
cause of action by a worker against his employer for termination in retaliation
for the worker complaining that the employer violated overtime compensation
laws, minimum wage laws, or other wage and hour laws, the worker need not
complain to the employer about an actual violation of wage and
hour laws. Rather, the worker need only complain to the employer
about conduct that the worker "reasonably and in good faith believes"
violates wage and hour laws. N.Y. Labor Law § 215(1)(a) (effective
April 9, 2011).
Call the Law Offices of David S. Rich, LLC at (212)
209-3972 to speak with a knowledgeable labor and employment lawyer about making sure
that your company complies with overtime pay and other wage and hour laws, or
to retain a skilled overtime attorney to defend your company in unpaid
overtime lawsuits or other wage and hour litigation.
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