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Will the 2nd Circuit protect victims of FLSA retaliation?

Across the United States, all of the federal circuits except the Second, which covers Connecticut, Vermont and New York, have had the same rule on employer retaliation under the Fair Labor Standards Act. Here in California and in the rest of the country, workers who complain about violations of the FLSA are protected from retaliation whether they complained internally to their employers or filed formal complaints with regulatory agencies.

Not so in the Second Circuit. Due to a 1993 opinion that has never been overturned, the court interpreted the statutory language "filing a complaint" as requiring the worker to literally file a complaint with the Department of Labor or an analogous state agency.

As a result, in all but these three states, workers who claim underpayment of wages, unpaid overtime, denied meal or rest breaks, or other violations of the federal law enjoy greater protection from retaliation under the federal law than they have in New York, Connecticut or Vermont.

Now, a new FLSA retaliation suit has come before the Second Circuit, and a wide range of public policy groups and employee rights organizations, along with the Department of Labor, are urging the appellate court to overrule their previous case and bring employee protections in that circuit in line with those in all the others.

The case involves a security guard who complained to his company that he hadn't been receiving his wages for several months. After he did so, his boss pulled a gun on him.

The guard immediately quit his job, then sued for his unpaid and underpaid wages in federal court. In addition to the money he is owed, however, he is seeking damages for that rather extreme form of retaliation.

Unfortunately, the District Court was hogtied by the Second Circuit's 1993 ruling. It ordered the security company to pay the guard $40,713.50 in lost wages and related damages, along with interest. It could not, however, compensate him for his employer's gunpoint retaliation.

One of the groups who filed a friend of the court brief on the guard's behalf is the National Employment Law Project. That group argues that the vast majority of FLSA complaints are made internally and, furthermore, most workers have no idea how to file an official complaint -- most don't even know that such a complaint would be filed with the Department of Labor.

For its own part, the Labor Department also urges the Second Circuit to change its rule. "The plain language of the provision and its underlying purpose compel a broad reading that protects internal complaints," the department contended in its own friend of the court brief.

"We do know that generally retaliation cases are on the rise, said one attorney who represents employers in the Second Circuit.

The unfortunate fact is, employer retaliation against those who complain about unlawful behavior is all too common.

Source: Thomson Reuters News & Insight, "Case to watch: Challenge to 2nd Circuit on FLSA retaliation," Carlyn Kolker, March 8, 2013

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