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Retaliation claim needn’t be written or to DOL

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in Employment Law,Human Resources

Employers aren’t supposed to retaliate against employees who file wage-and-hour complaints against their employers. For quite some time now, there has been confusion over two things: first, whether the employee has to make a written complaint, and second, whether the complaint has to be made to a governmental agency like the Department of Labor.

Now the 2nd Circuit Court of Appeals, which covers New York employers, has settled the issue.

Recent case: From 2006 until Oct. 14, 2011, Darnell worked as a security guard for JHS Security. The owner, Darnell’s boss, sometimes didn’t pay Darnell what he should have been paid. There were frequent late paychecks, paychecks with improper deductions and paychecks in the wrong amount.

Darnell often complained directly to his boss about these improprieties. He never filed a complaint with the Department of Labor, either in writing or via a phone call.

Finally, Darnell once again confronted his boss about a series of missing paychecks that went back several months. His response was, “I’ll pay you when I feel like it.” Then, without warning, he drew a gun on Darnell.

Darnell left and didn’t look back—until he sued for lost wages and retaliation for complaining about wage-and-hour issues.

The company never answered the complaint, leaving it for the court to determine if Darnell had a case.

The 2nd Circuit Court of Appeals concluded two things. First that a Fair Labor Standards Act complaint doesn’t have to be in writing. Second, that the complaint can be an internal one. Thus, since Darnell had complained, firing him could be retaliation. All that’s left now is to determine how much Darnell is owed. (Greathouse v. JHS Security, No. 12-4521, 2nd Cir., 2015)

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