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Shulman Kessler
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Does pointing a gun at a worker mean you're fired? pt.1

The Fair Labor Standards Act (FLSA) governs much of the employment rights of workers in the U.S. As the name implies, the FLSA sets many standards for employers, including wage and hour laws. To ensure these laws can be enforced, the FLSA has anti-retaliation provisions, to prevent employers from firing employees who complain about violations of the FLSA.

Like most laws, there are notice requirements with the FLSA that must be followed to ensure that employers had notice of problems or violations, which one would hope, would allow them to remedy those issues prior to a lawsuit.

A case from New York deals with this notice requirement. A security guard complained to his employer that he had not been paid for months. His employer told him, "I'll pay you when I feel like it," and to reinforce his point, he aimed a gun at the complaining worker. The worker did not return to his job, apparently not wanting to be fired in a more literal sense.

This was a clear violation of the FLSA and the New York Labor Law. The worker sued in federal court and obtained a default judgment on the missing wages, but the court dismissed the retaliation damages claim on the basis that it was improper, as the worker had not made complaint to a government agency or prosecutor.

The lower court found that while oral or written complaints were actionable under the FLSA, the Court of Appeals for Second Circuit, which includes New York, had previously ruled that complaints had to be written to be within the definition of "file any complaint" when analyzing a retaliation claim.

The U.S. Supreme Court recently looked at the issue and determined that an oral complaint can qualify an employee for protection under the 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."

The court of appeals then had to consider if the filing of any complaint meant to a governmental agency, like the EEOC or if an internal complaint with the employer would qualify.

(Continued in our next post)

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