Second Circuit SealIn a 2-1 decision issued on April 20, 2015, the Second Circuit expanded the scope of protected activity under the Fair Labor Standard Act’s (FLSA) anti-retaliation provision.

The FLSA prohibits retaliation against an employee who “has filed any complaint . . . related to” the FLSA’s provisions. In Greathouse v. JHS Security, Inc., the Second Circuit considered whether an oral complaint of FLSA violations made by an employee to his superior met the FLSA’s definition of “fil[ing] any complaint.” Specifically, the employee complained orally to his supervisor that he had not been paid in several months. The district court entered a default judgment against the employer, but ruled that the facts alleged did not set forth a FLSA action based upon Second Circuit precedent.

The Eleventh Circuit joined the Sixth and Eighth Circuits in holding that liquidated damages awards for FLSA retaliation claims are discretionary, not mandatory. Moore v. Appliance Direct, Inc., No. 11-cv-15227 (11th Cir. Feb. 13, 2013).  Though encouraging for employers, the decision does not specifically enumerate factors courts should consider in exercising discretion with respect to awarding or denying liquidated damages.

On December 26, 2012, the Eleventh Circuit issued a ruling that strengthens defenses to “protected activity” in FLSA retaliation actions.  Miller v. Roche Surety & Casualty Co., Inc.,  No. 12-cv-10259 (11th Cir. Dec. 26, 2012) (unpublished).  In particular, this decision shields employers in situations where employees make vague, unclear and/or ambiguous statements that they later attempt to characterize as protected activity in litigation.

The U.S. Court of Appeals for the Seventh Circuit recently denied an employer’s  motion for summary judgment in a closely watched FLSA retaliation case based on circumstantial evidence of a causal nexus between protected activity and an adverse employment action.  Kasten v. Saint-Gobain Performance Plastics Corp., No. 12-cv-1671, 2012 U.S. App. LEXIS 24624 (7th Cir. Nov. 30, 2012).  The court focused closely on:  (i) suspicious timing; (ii) allegedly “ambiguous” statements and behavior; and (iii) purported evidence of pretextual reasons for the adverse employment action.  Though this case arises in the FLSA context, it sheds light on the approach the Seventh Circuit other courts can be expected to take in a variety of employment retaliation cases.