Federal discrimination law is well settled that individuals who complain about discrimination, whether orally or in writing and whether internally or to an administrative agency or court, are protected by the anti-retaliation provisions of the those laws.

At least in New York, the law was less certain about whether employees who complain orally and internally about improper wage payments were protected by the Fair Labor Standards Act’s (the “FLSA”) anti-retaliation provision. Indeed, in 2011, the highest Federal Appellate Court in New York, the Second Circuit, ruled that employees are protected under the FLSA’s retaliation provision only when (1) the complaint is written and (2) when it is filed with a government agency. On April 20, 2015, the Second Circuit reversed itself in Greathouse v. JHS Security, Inc., and held that employees who complain orally and internally are also protected.

Generally, speaking, the FLSA requires, among other things, that employers pay employees minimum wage and, when working more than 40 hours in a week, that employers pay overtime. Like the Federal anti-discrimination statutes, the FLSA contains an anti-retaliation provision which prohibits employers from retaliating against employees who file complaints related to the FLSA’s protections. In most jurisdictions in the United States, the Federal Appellate Courts interpreted the anti-retaliation provision like the discrimination statutes’ anti-retaliation sections, meaning that employees were covered by complaining orally to someone inside the company.

On June 13, 2014, Famighetti & Weinick, PLLC filed a complaint in the United States District Court Eastern District of New York alleging, among other things, age discrimination claims on behalf of its client.

The complaint alleged violations of Federal and State age discrimination laws. Because of a procedural technicality, however, the New York State law claims were asserted against only the individual defendants and not against the employer entity.

In fall 2014, the individual defendants asked the Court to dismiss the State law claim against them. They argued that because the complaint did not assert a State law claim against the employer entity, then the plaintiff could not maintain State law claims against them because the plaintiff could not prove “predicate liability.” Firm partner, Matt Weinick, argued to the Court that the defendants were misinterpreting the applicable case law and that the claims against the individuals were proper because the claim against the employer entity was only procedurally barred and not substantively defective. Further, Weinick argued that the individuals were liable as employers because they were supervisors.

For nearly four years, parties battled in federal court over whether the plaintiff was entitled to unpaid overtime, liquidated damages, and attorneys fees and costs from the defendants.

Then, in early December 2014, Famighetti & Weinick, PLLC entered the case as the new attorneys for the defendants. In less than two months, firm partner, Peter Famighetti, was able to overcome the divide that separated the parties in settlement discussions. The plaintiff’s attorney represented to Famighetti that the proposed terms were acceptable and that the case was settled.

On consent of the plaintiff’s lawyer, Famighetti advised the Court that the parties had reached a settlement in principal, finalized the settlement agreement, and that the parties would be executing the written agreement within weeks. The next day, the Court closed the case.

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