“Revenge is a dish best served cold.”
So says the notorious Khan Noonien Singh (played by Ricardo Montalban) as he reminds Captain Kirk of this ancient Klingon Proverb in Star Trek II: The Wrath of Khan.
While Klingons are the undisputed galactic bad-asses of Star Trek, neither they nor Khan have cornered the market on revenge.
In the American workplace, for example, there are a number of federal laws that specifically prohibit retaliation against employees who engage in “protected activity”. The general purpose of these anti-retaliation provisions are to ensure that employees who exercise rights guaranteed by law are not punished for that activity. Without those protections, the law would lose its teeth and be rendered a mere paper tiger (a phrase coined by another notorious dictator – the Chinese Communist Chairman Mao Zedong).
The Fair Labor Standards Act (FLSA) – enacted in 1938 – is one such law. The FLSA is the federal law requiring that covered employees are paid at least minimum wage and time and one-half their regular hourly rate for all hours worked over 40 in any work week.
Under the FLSA, employees who complain about wage violations are engaged in “protected activity” and shielded from discharge or other forms of discrimination.
Until recently, federal courts in New York required employees alleging retaliation under the FLSA to show that the activity which led to the retaliation was a formal, written complaint to a government agency such as the Department of Labor.
On April 20, 2015, however, the Second Circuit Court of Appeals – the federal circuit court which covers New York, Connecticut and Vermont – issued an opinion bringing it in line with the majority of other circuit courts.
Now it is clear that in New York, an employee who complains to an employer – including his or her supervisor – about wage violations is protected by the anti-retaliation provisions of the FLSA, even where that complaint is made orally and not in writing.
While there are no magic words and an employee need not invoke the FLSA by name to be protected from retaliation, “to fall within the scope of the antiretaliation provision a complaint must be 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 cautioned employees that not all “grumbles in the hallways about an employer’s payroll practice” will rise to the level of protected activity.
The court’s decision is long overdue. The FLSA was enacted to establish minimum labor standards. Because the government cannot monitor every employer’s payroll practices, the law envisioned employees as the primary force to ensure compliance with those standards. The antiretaliation provision is the safeguard that allows employees to carry out that function in the workplace despite the threats of those who mutter, “He tasks me, he tasks me and I shall have him.”
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Ralph A. Somma is a Long Island, NY employment lawyer who handles cases involving retaliation and discrimination in the workplace.
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About the Author: Ralph A. Somma
Ralph A. Somma is an experienced employment lawyer from Long Island, New York. For over 25 years, Ralph has been working to enforce workplace rights in New York and Long Island.
Call today (631) 587-1699 or click here to schedule a FREE telephone consultation.
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