Thursday, December 27, 2007

Wage Claim Retaliation Under New York and Federal Law ... The Differing Standards

Higueros v. New York State Catholic Health Plan, Inc. (U.S. Dist. Ct., E.D.N.Y., 12/1/07), provides a generally good discussion of the differing standards concerning retaliation claims under the Fair Labor Standards Act (the "FLSA") (29 U.S.C. Sec. 215, et seq.) and New York Labor Law Section 215, et seq. In Higueros, the Plaintiff worked as a marketing and sales representative for the Defendant, and alleged that the Defendant employer failed to pay overtime compensation in violation of the FLSA and New York Labor Law. The Plaintiff further alleged that she was fired in retaliation for complaining to supervisors about the Defendant's failure to pay overtime. The Defendant's Motion to dismiss was granted in part and denied in part.

In dismissing the claim under the FLSA, the court relied on Second Circuit precedent in holding that: (i) FLSA Sec. 215(a)(3) required either the filing of a formal complaint with the employer, the institution of a proceeding, or testimony in a proceeding for protection to attach; and (b) the FLSA did not encompass informal complaints made to a supervisor. In Higueros, the Plaintiff admitted that she made only informal complaints to her supervisors about the Defendant's failure to pay overtime wages.

Interestingly, the court upheld the retaliation cause of action asserted under New York Labor Law Sec. 215 (1) on the grounds that the State statute is less specific as to what form an employee's complaint to management must take to qualify for protection against retaliation. Unlike the FLSA, New York Labor Law does not require a formal complaint. Accordingly, the Plaintiff's informal complaints to her supervisor were held to be sufficient under State law to survive the Motion to Dismiss.

This is the kind of stuff that gives lawyers fits. On the FLSA front, the statute's requirement of a formal complaint is appropriate to ensure the existence of objective evidence with respect to the employer's knowledge of the allegations and its subsequent actions to remedy the situation, if any. On the other hand, it penalizes those individuals who complain only to their supervisor based on either naivete or a fear of putting something in writing which the employee believes will come back to hurt them later. As to the New York statute, the problem is just the opposite. The lack of a requirement for filing a formal complaint benefits the employee greatly while putting the employer in the unenviable position of having to defend a claim based solely on testimonial evidence.

While I'd like to see more uniformity in the law, at least the attorneys are generating fees either way. That's a good thing, isn't it?

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