Maintenance Worker Successfully Pleads Retaliation Claim Arising From Termination Following Wage Complaints

Payano v. CompassRock Real Estate LLC, decided by the Southern District of New York on May 12, 2014, discusses the application of the anti-retaliation provisions of the Fair Labor Standards Act and the New York Labor Law.

Plaintiff, a live-in apartment maintenance worker, alleged that he was only paid for 40 hours, even though he “usually worked between 50 and 60 hours each week, and sometimes 70 or more hours in a given week.” Plaintiff alleges that defendants fired him after he complained to them about defendants’ wage policy and after he refused to sign an “Occupancy Agreement”.

Applying the “plausibility” pleading standard to plaintiff’s claims, the court dismissed plaintiff’s FLSA retaliation claim, but permitted him to assert his Labor Law retaliation claim.

FLSA section 215 “prohibits employers from retaliating against an employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA], or has testified or is about to testify in any such proceeding.” In Lambert v. Genesee Hospital, 10 F.3d 46 (2d Cir.1993), the Second Circuit held that section 215 does not encompass so-called “internal” complaints made to an employer.

The court thus concluded that since “plaintiff alleges that his only complaint was to his employer, Lambert requires that plaintiff’s claim for retaliation under the FLSA be dismissed.

The court reached a different conclusion, however, on plaintiff’s New York Labor Law retaliation claim. New York Labor Law section 215 “prohibits an employer from discharging an employee because such employee has made a complaint to his or her employer … that the employer has engaged in conduct that the employee, reasonably and in good faith, believes violates any provision of [the Labor Law], or any order issued by the commissioner.” (Emphasis added.) An employee complaint … need not make explicit reference to any section or provision of [the Labor Law] to trigger the protections of Section 215.”

Applying this law, the court held that plaintiff adequately pled a New York Labor Law retaliation claim, reasoning that he

alleges that defendants told him they were discharging him because of his complaints about their “wage policy”-in particular, their failure to compensate him for overtime hours-as well as his refusal to sign the Occupancy Agreement. This supports a reasonable inference that Payano’s discharge was “because … [of Payano’s] complaint to his … employer.”And, drawing all reasonable inferences in Payano’s favor, when Payano objected to defendants’ wage policy, he did so in the belief that defendants were violating applicable labor laws. Such a belief was reasonable, as the NYLL generally guarantees overtime wages, and defendants provided Payano a Notice of Pay Rate that confirmed that he was to be paid an “Overtime Pay Rate” equal to one-and-a-half times his ordinary “Rate of pay.”

Finally, the court held that plaintiff raised a “colorable violation” of the Labor Law in his complaint and rejected defendants’ argument that plaintiff was not entitled to overtime pay because he was a “janitor in a residential building” within the meaning of 12 NYCRR 141-1.4. “A building may only have a single janitor”, and it could be reasonably inferred that the building “employed multiple maintenance persons” such that “it would require the assumption of facts not alleged to hold that Payano was a ‘janitor’ excluded from New York’s overtime regulations.”

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