By Carlyn Kolker
NEW YORK (Reuters) - A case before the 2nd Circuit Court of
Appeals is challenging the court to change its position on the
reach of the Fair Labor Standards Act's protections for workers
who complain about alleged violations.
The case, in which the Department of Labor and a host of
pro-employee interest groups have weighed in, asks the appeals
court to dismantle an earlier finding on whether workers who
complain to their employers are protected from retaliation under
the Fair Labor Standards Act.
According to legal experts, every other circuit has allowed
workers to sue for damages if it believes they have been
retaliated against after making a complaint to their employer.
But the 2nd Circuit is an outlier. In a 1993 opinion, the New
York-based circuit said that employees must complain externally
- to a government agency or investigator, or in testimony - in
order to invoke the FLSA's retaliation provision.
In that opinion, the 2nd Circuit interpreted the FLSA's
language about what constitutes "filing a complaint" more
literally than all other circuits, according to Jeremy Stewart,
an attorney at Seyfarth Shaw who represents employers in
Darnell Greathouse is the plaintiff at the forefront of the
case now before the 2nd Circuit. Greathouse was a security guard
who complained to his supervisor at JHS Security Inc that he had
not been paid for several months.
After Greathouse complained, his boss pulled a gun on him,
according to a lawsuit Greathouse filed in federal court in New
York. Greathouse quit his job and then sued for unpaid wages and
underpayment of wages under the FLSA. He also asked for damages
under the law's retaliation provision, noting the gun incident.
JHS Security could not be reached for comment.
Neither JHS Security nor Greathouse's supervisor, Melvin
Wilcox, appeared in court or answered Greathouse's complaint,
and U.S. District Judge Paul Engelmayer entered a default
judgment for Greathouse for $40,713.50 in lost pay and
liquidated damages, plus interest. But he denied Greathouse's
request for damages under the retaliation provision, pointing to
the longstanding circuit holding.
While Greathouse's situation may have been extreme because a
gun was pulled on him, his lawyer, Penn Dodson, said retaliation
is common. "This is an issue I see a lot," he said. "I represent
a lot of workers who have problems with their wages, large and
small, and they complain to their bosses as a first line of
Greathouse appealed to the 2nd Circuit and a coalition of
groups filed amicus briefs on his behalf.
The National Employment Law Project, joined by groups
representing restaurant workers and retail workers as well as
the Legal Aid Society, argued that the "overwhelming majority"
of workplace complaints are made internally.
"Many workers do not know how to contact the U.S.
(Department of Labor) or otherwise submit a complaint to an
agency," the coalition of amicus groups wrote in a Feb. 26
brief, arguing that a lack of protection from an employer's
reprisal could have a chilling effect, particularly on low-wage
The Department of Labor has also urged the 2nd Circuit to
revisit its precedent. "The plain language of the provision and
its underlying purpose compel a broad reading that protects
internal complaints," the department wrote in its brief, also
filed on Feb. 26. "Indeed, all other circuits that have decided
this issue have held that internal complaints are protected."
Stewart, the Seyfarth Shaw attorney, said the Department of
Labor's filing is an example of "regulation by amicus," in which
it has persuaded courts to review their precedent. He cited its
efforts in the 4th Circuit, the last circuit to broaden the
retaliation provision, as well as the fact that it has filed
another amicus brief in a different case pending before the 2nd
Circuit over the retaliation issue.
Stewart said that if the circuit alters its precedent, more
cases against employers could follow.
"We do know that generally retaliation cases are on the
rise. By extension, if the 2nd Circuit broadens (the provision)
out, it's reasonable for us to broaden out and say you will have
a large percentage of employees who can bring these claims who
otherwise wouldn't," he said.
A date for oral argument before the 2nd Circuit has not yet
been set, and the defendants, as in the district court case,
have not appeared in the case.
The case is Greathouse v. JHS Security, 2nd Circuit Court of
Appeals, No. 12-4521.
For plaintiff Darnell Greathouse: Penn Dodson of
For defendants JHS Security Inc and Melvin Wilcox: Not
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