DISCUSSION

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES............................................................................ iii

STATEMENT OF THE INTEREST OF AMICI CURIAE AND THEIR

AUTHORITY TO FILE A BRIEF IN THIS CASE................................. 1

STATEMENT OF THE ISSUE........................................................................ 2

STATEMENT OF THE CASE......................................................................... 3

SUMMARY OF THE ARGUMENT................................................................ 5

ARGUMENT.................................................................................................... 7

I. IN LIGHT OF THE REASONING OF THE SUPREME

COURT’S DECISION IN KASTEN AND THE DECISIONS

OF EVERY OTHER CIRCUIT COURT TO HAVE

ADDRESSED THE QUESTION, THIS COURT SHOULD

REVISIT ITS RULING THAT INTERNAL COMPLAINTS

ARE NOT COVERED UNDER SECTION 15(a)(3) OF

THE FLSA.................................................................................... 7

A. The Supreme Court’s Kasten Decision Has Cast

Doubt on the Genesee Hospital Holding; Thus,

this Panel Should Overrule It............................................... 8

B. En Banc Hearing Is Appropriate If the Panel Declines to

Reverse Genesee Hospital................................................... 14

II. SECTION 15(a)(3) PROTECTS AN EMPLOYEE WHO

FILES A COMPLAINT WITH HIS OR HER EMPLOYER ALLEGING VIOLATIONS OF THE ACT...................................................... 15

A. The Plain Language Is Broad in Scope and Encompasses

Complaints to One’s Employer......................................... 16

Table of Contents – continued

B. If the Statutory Language Alone Is Not Dispositive, the Policy

Goals of Section 15(a)(3) Support a Reading that Covers Internal Complaints 20

C. The Secretary and EEOC’s Longstanding Interpretation that

“Filed Any Complaint” Encompasses Internal Complaints Is Reasonable and Entitled To Deference.................................................................. 26

CONCLUSION............................................................................................... 28

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(A)(7)(B)

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases:

Barrentine v. Arkansas-Best Freight Sys., Inc.,

450 U.S. 728 (1981).............................................................................. 20

Boothe v. Hammock,

605 F.2d 661 (2d Cir.1979).................................................................. 12

Brennan v. Maxey’s Yamaha, Inc.,

513 F.2d 179 (8th Cir. 1975)............................................................ 7, 23

Brock v. Richardson,

812 F.2d 121 (3d Cir.1987)..................................................................... 7

Chennisi v. Commc'n Const. Group, LLC,

2005 WL 387594 (E.D. Pa. Feb. 17, 2005)............................................. 7

Chao v. Gotham Registry, Inc.,

514 F.3d 280 (2d Cir. 2008)................................................................. 21

EEOC v. Romeo Cmty. Sch.,

976 F.2d 985 (6th Cir. 1992).................................................. 7, 9, 18, 23

EEOC v. White & Son Enters.,

881 F.2d 1006 (11th Cir. 1989).................................................. 7, 22, 23

Fed Express Corp. v. Holowecki,

552 U.S. 389 (2008).............................................................................. 27

Finkel v. Stratton Corp.,

962 F.2d 169 (2d Cir. 1992)................................................. 8, 12, 13, 14

Gelman v. Ashcroft,

372 F.3d 495 (2d Cir. 2004)................................................................. 13

Hagan v. Echostar Satellite, LLC,

529 F.3d 617 (5th Cir. 2008)...................................................... 7, 20, 23

Cases (cont.):

Hayden v. Pataki,

449 F.3d 305, 370 (2d Cir. 2006)......................................................... 15

Hyunmi Son v. Reina Bijoux, Inc.,

823 F.Supp.2d 238 (S.D.N.Y. 2011)...................................................... 5

In re Caldor Corp.,

303 F.3d 161 (2d Cir. 2002)........................................................... 16, 17

In re Zarnel,

619 F.3d 156 (2d Cir. 2010)................................................................. 13

Kasten v. Saint-Gobain Plastics,

131 S. Ct. 1325 (2011)................................................................... passim

Kasten v. Saint-Gobain Plastics, 570 F.3d 834 (7th Cir. 2009),

rev’d on other grounds, 131 S. Ct. 1325 (2011)................................ 7, 19

Kremer v. Chemical Constr. Corp.,

623 F.2d 786 (2d Cir.1980), aff'd, 456 U.S. 461 (1982)....................... 12

Lambert v. Ackerley,

180 F.3d 997 (9th Cir. 1999).......................................................... passim

Lambert v. Genesee Hosp.,

10 F.3d 46 (2d Cir. 1993)............................................................... passim

Leegin Creative Leather Prods., Inc. v. PSKS, Inc.,

551 U.S. 877 (2007).............................................................................. 25

Love v. RE/MAX of Am., Inc.,

738 F.2d 383 (10th Cir. 1984).......................................................... 7, 23

Minor v. Bostwick Laboratories,

669 F.3d 428 (4th Cir. 2012).......................................................... passim

Mitchell v. DeMario Jewelry,

361 U.S. 288 (1960)........................................................................ 21, 22

Cases (cont.):

Mitchell v. Lublin, McGaughy & Assocs.,

358 U.S. 207 (1959).............................................................................. 21

Moore v. Freeman,

355 F.3d 558 (6th Cir. 2004)................................................................ 23

NLRB v. Scrivener,

405 U.S. 117 (1972).............................................................................. 24

Neviaser v. Mazel Tec,

No. 1:12–CV–48, 2012 WL 3028464 (D. Vt. July 25, 2012)......... 3, 4, 5

Pacheco v. Whiting Farms, Inc.,

365 F.3d 1199 (10th Cir. 2004)............................................................ 23

Passaic Valley Sewerage Comm'rs v. Dep't of Labor,

992 F.2d 474 (3d Cir. 1993)................................................................. 22

Rich v. Maranville,

369 F.3d 83 (2d Cir. 2004)................................................................... 13

Robinson v. Shell Oil Co.,

519 U.S. 337 (1997).............................................................................. 16

Rutherford Food Corp. v. McComb,

331 U.S. 722 (1947)........................................................................ 20, 21

Ryder v. Platon,

No. 11–CV–4292, 2012 WL 2317772 (E.D.N.Y. June 19, 2012)........... 5

Schweiker v. Chilicky,

487 U.S. 412 (1988).............................................................................. 10

Taylor v. Vt. Dep't of Educ.,

313 F.3d 768 (2d Cir. 2002)................................................................. 13

Tony & Susan Alamo Found. v. Sec'y of Labor,

471 U.S. 290 (1985).............................................................................. 21

Cases (cont.):

Tyler v. Douglas,

280 F.3d 116 (2d Cir. 2001)................................................................. 17

Union of Needletrades, Indus. & Textile Employees v. U.S. I.N.S.,

336 F.3d 200 (2d Cir. 2003)................................................................. 12

Valerio v. Putnam Assoc.,

173 F.3d 35 (1st Cir. 1999)............................................................ passim

Wojchowski v. Daines,

498 F.3d 99 (2d Cir. 2007)................................................................... 13

Statutes:

Civil Rights Act of 1964,

42 U.S.C. 2000e (Title VII)

42 U.S.C. 2000e-3(a).............................................................................. 8

Equal Pay Act,

29 U.S.C. 206(d)..................................................................................... 2

Fair Labor Standards Act of 1938 as amended;

29 U.S.C. 201 et seq.,

29 U.S.C. 204(a)..................................................................................... 1

29 U.S.C. 204(b)..................................................................................... 1

29 U.S.C. 215(a)(3)........................................................................ passim

29 U.S.C. 216(c)..................................................................................... 1

29 U.S.C. 217......................................................................................... 1

National Labor Relations Act,

29 U.S.C. 158(a)(4)............................................................................... 24

Rules:

Fed. R. App. P. 29(a).................................................................................... 1, 2

Fed. R. App. P. 35.......................................................................................... 15

Fed. R. App. P. 35(b)..................................................................................... 15

Fed. R. App. P. 35(b)(1)(B)............................................................................ 14

Fed. R. App. P. 35(c)...................................................................................... 15

Agency Briefs and Manuals:

2 EEOC Compliance Manual, Section 8: Retaliation §§ 8-I(A), 8-II(B)

& n.12 (May 20, 1998), http://www.eeoc.gov/policy/docs/retal.pdf..... 27

Br. for the EEOC, EEOC v. Romeo Cmty. Sch.,

No. 91-2181 (6th Cir. Jan. 2, 1992)...................................................... 27

Br. for the EEOC, EEOC v. White & Son Enters.,

No. 88-7658 (11th Cir. Mar. 1, 1989)................................................... 27

Br. for the United States, Kasten v. Saint-Gobain Performance Plastics Corp.,

No. 09-834 (U.S. June 21, 2010).......................................................... 26

Br. for the Secretary of Labor, Kasten v. Saint-Gobain Performance Plastics,

No. 08-2820 (7th Cir. Nov. 19, 2008)................................................... 27

Br. for the Secretary of Labor, Lambert v. Ackerley,

Nos. 96-36017, 96-36266 & 96-36267 (9th Cir. Apr. 12, 1999)............. 27

Br. for the EEOC, Lambert v. Ackerley,

Nos. 96-36017, 96-36266 & 96-36267 (9th Cir. Apr. 22, 1999).......... 27

Br. for the EEOC and Secretary of Labor, Minor v. Bostwick Laboratories, Inc.,

No. 10-1258 (4th Cir. June 23, 2011)............................................. 26, 27

Other Court Documents:

Neviaser v. Mazel Tec, Motions and Pleadings,

No. 1:12CV-48, (D. Vt.)..................................................................... 3, 4

Miscellaneous Sources:

Merriam-Webster Online Dictionary (2011), available at

http://www.merriam-webster.com................................................... 16, 17

Random House College Dictionary (rev. ed. 1982)................................... 16, 17

IN THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

__________________________________

JONATHAN NEVIASER,

PLAINTIFF-APPELLANT,

MAZEL TEC, INC., d/b/a PINNACLE SKI & SPORTS,

DEFENDANT-APPELLEE.

_________________________________

On Appeal from the United States District Court

for the District of Vermont

_________________________________

BRIEF FOR THE SECRETARY OF LABOR AND THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

AS AMICI CURIAE SUPPORTING PLAINTIFF-APPELLANT

AND URGING REVERSAL OF THE DISTRICT COURT

_________________________________

Pursuant to Federal Rule of Appellate Procedure 29(a), the Secretary of Labor (“Secretary”) and the Equal Employment Opportunity Commission (“EEOC”) submit this brief as amici curiae in support of the employee in this Fair Labor Standards Act (“FLSA” or “the Act”) case.

STATEMENT OF THE INTEREST OF AMICI CURIAE AND THEIR AUTHORITY TO FILE A BRIEF IN THIS CASE

The Secretary, who administers and enforces the FLSA’s wage and hour protections, see 29 U.S.C. 204(a), (b); 216(c); 217, has a substantial interest in this case, which concerns how the Act’s section 15(a)(3) anti-retaliation provision, 29 U.S.C. 215(a)(3) (prohibiting retaliation “because such employee has filed any complaint” related to the FLSA), should be interpreted. The EEOC also has an interest based on its responsibility for enforcing the Equal Pay Act (“EPA”), which prohibits sex-based wage discrimination. The EPA is codified as part of the FLSA, 29 U.S.C. 206(d), and complaints thereunder are covered by the section 15(a)(3) anti-retaliation provision. Specifically, amici believe that the scope of protection afforded to employees’ complaints of FLSA violations plays a critical role in achieving compliance with the workplace standards prescribed by the Act.

Federal Rule of Appellate Procedure 29(a) permits an agency of the United States to file an amicus brief without consent of the parties or leave of the court.

STATEMENT OF THE ISSUE

Every other circuit addressing the scope of the section 15(a)(3) anti-retaliation provision has held that it protects employees who complain internally to their employers about FLSA violations. This interpretation is consistent with the Act’s goal of eradicating substandard workplace conditions, and has long been the view of the Secretary and EEOC. The issue here is whether, in light of a Supreme Court decision undermining the reasoning of this Court’s decision denying such protection, this Court should now deem internal complaints to be protected.

STATEMENT OF THE CASE

1. Neviaser worked at Mazel Tec’s store, Pinnacle Ski & Sports, off and on for 11 years. See Neviaser v. Mazel Tec, Inc., No. 1:12-CV-48, 2012 WL 3028464, at *1 (D. Vt. July 25, 2012 ).[1] In 2011, he was an inventory coordinator in the warehouse, a job which involved no supervisory duties or independent judgment. In this job, he organized, moved, and unpacked boxes. Id. Neviaser established an excellent work history at Mazel Tec, and eventually began earning a salary of $650 per week. Id. “Pushed” by his employer to work in excess of 40 hours per week, Neviaser put in approximately 15 hours of overtime for the period from May to November 2011. Id.

On November 28, 2011, Neviaser made a complaint to his supervisor that Mazel Tec was violating the law by failing to pay him overtime. See Neviaser, 2012 WL 3028464, at *1. Later that same day, he was demoted. Id. He then told his supervisor he intended to go to the Department of Labor. Id. Neviaser’s supervisor promptly fired him. Id. Neviaser telephoned Mazel Tec’s owner that evening. Id. The owner asked him if “this is the way you really want to handle this situation.” Id. Neviaser said that Mazel Tec was not paying him and other workers in accordance with the law, to which the owner replied, “Don’t worry about them; you are not working here anymore…. If you want to go ahead and file a complaint with the Labor Department, go ahead and do it.” Id.

2. On March 7, 2012, Neviaser filed a suit alleging retaliation, along with other FLSA and state law claims, in the District Court for the District of Vermont. See Complaint, Neviaser v. Mazel Tec, March 7, 2012. Mazel Tec moved to dismiss several of Neviaser’s claims on March 28, 2012. The company asserted that in Lambert v. Genesee Hospital, 10 F.3d 46 (2d Cir. 1993), the Second Circuit had unequivocally held that internal complaints are not protected, thus precluding Neviaser’s section 15(a)(3) claim. See Mazel Tec Mot. to Dismiss.

Neviaser responded by contending that Genesee Hospital was not controlling. See Neviaser Resp. to Mot. to Dismiss, at 3-6. Specifically, he argued that the Supreme Court’s decision in Kasten v. Saint-Gobain Plastics, 131 S. Ct. 1325 (2011), which concerned whether oral complaints were protected by section 15(a)(3), had abrogated Genesee Hospital; and, even if Genesee Hospital had not been abrogated, the facts of his case were distinguishable because, unlike the plaintiff in Genesee Hospital, Neviaser had told his employer that he intended to go to the Department of Labor with his allegations. See Neviaser Resp. to Mot. to Dismiss, at 3-6.

3. Rejecting Neviaser’s arguments, on July 25, 2012, the district court dismissed the section 15(a)(3) retaliation claim, along with other claims of the plaintiff. With respect to the “abrogation” argument, the district court relied on language in Kasten that disavowed that it was resolving the internal complaint issue. See Neviaser, 2012 WL 3028464, at *2 (citing Kasten, 131 S. Ct. at 1336). The district court further noted that two other district courts within the Second Circuit had ruled that Kasten did not overrule Genesee Hospital: Ryder v. Platon, No. 11–CV–4292, 2012 WL 2317772, at *7–8 (E.D.N.Y. 2012); Hyunmi Son v. Reina Bijoux, Inc., 823 F.Supp.2d 238, 244 (S.D.N.Y. 2011). Id. With respect to the argument that the facts of Neviaser’s case were distinguishable, the district court noted that the language of the statute indicated that an employee must actually file a covered complaint in order to trigger anti-retaliation protection; merely threatening to file a complaint with the government was not enough. Id. Neviaser’s remaining claims were disposed of by a stipulated dismissal, and the district court entered its judgment on September 7. Id.

SUMMARY OF THE ARGUMENT

In its Genesee Hospital decision, this Court reasoned that because section 15(a)(3), in contrast to Title VII’s anti-retaliation provision, failed to state explicitly that complaints to one’s employer – often referred to as internal complaints – were covered, the plain language of that section barred such an interpretation. See 10 F.3d at 55. Notably, every other circuit to have addressed this issue has reached the contrary conclusion that internal complaints are protected. And in 2011, the Supreme Court, in determining whether section 15(a)(3) protects oral complaints, declined to give weight to the fact that other statutes contain language more explicitly protective of oral complaints. See Kasten, 131 S. Ct. at 1332-33. Instead, Kasten engaged in a thorough analysis of the plain language of section 15(a)(3) and closely examined the Act’s underlying policies to conclude that section 15(a)(3) should be read broadly. Id. at 1331-34. The intervening authority of Kasten calls into question this Court’s earlier reliance on the language of Title VII, and warrants revisiting the Genesee Hospital decision. Indeed, when a subsequent Supreme Court decision casts doubt on a panel decision, this Court permits a three-judge panel to reverse the earlier panel’s decision without the need for an en banc proceeding.

An analysis of section 15(a)(3) in light of Kasten, whether by means of panel or en banc review, compellingly shows that internal complaints should be protected. An interpretation of section 15(a)(3) that protects internal complaints is supported by the expansive plain language of the provision – which covers “any complaint,” 29 U.S.C. 215(a)(3) (emphasis added) – as well as the Act’s underlying policies, since compliance with its core protections depends on individual employees’ ability to report violations to their supervisors.

ARGUMENT

I. IN LIGHT OF THE REASONING OF THE SUPREME COURT’S DECISION IN KASTEN AND THE DECISIONS OF EVERY OTHER CIRCUIT COURT TO HAVE ADDRESSED THE QUESTION, THIS COURT SHOULD REVISIT ITS RULING THAT INTERNAL COMPLAINTS ARE NOT COVERED UNDER SECTION 15(a)(3) OF THE FLSA

Section 15(a)(3) prohibits an employer from retaliating against an employee “because such employee has filed any complaint … under or related to” the FLSA. The plain language of the provision and its underlying purpose compel a broad reading that protects internal complaints. Indeed, all the other circuits that have decided this issue have held that internal complaints are protected. [2]

Although this Court, in Lambert v. Genesee Hospital, held that internal complaints are not protected, 10 F.3d at 55, the Second Circuit permits a panel to reexamine the decision of a prior panel if an intervening Supreme Court decision has “cast doubt” on the earlier holding. Finkel v. Stratton Corp., 962 F.2d 169, 175 (2d Cir. 1992). The Supreme Court in Kasten engaged in a probing analysis of section 15(a)(3) in concluding that oral complaints are protected; while it did not directly hold that internal complaints are covered, see 131 S. Ct. at 1336 (“we state no view on the merits of Saint–Gobain’s alternative claim”), the Supreme Court’s analysis in Kasten “casts doubt” on the Second Circuit’s Genesee Hospital ruling that internal complaints are unprotected. As the Fourth Circuit recently determined, the reasoning of Kasten weighs in favor of the conclusion that internal complaints are protected. See Minor, 669 F.3d at 433 (finding Kasten’s “reasoning applicable to our analysis”). Thus, this panel is empowered to revisit and overrule Genesee Hospital. Alternatively, if this panel declines to overrule Genesee Hospital, we urge this Court to conduct an en banc review.

A. The Supreme Court’s Kasten Decision Has Cast Doubt on the Genesee Hospital Holding; Thus, this Panel Should Overrule It.

1.a. The Second Circuit in Genesee Hospital dispensed with the argument that the FLSA’s anti-retaliation language covers internal complaints by observing that, unlike Title VII, which has broad language that protects employees who “oppose[] any [unlawful employment] practice,” 42 U.S.C. 2000e-3(a), the narrower language of section 15(a)(3) implies a more limited scope that includes “retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to a supervisor.” 10 F.3d at 55.[3] The lone authority Genesee Hospital cited for its plain language analysis was the Sixth Circuit dissent in Romeo, which relied on the fact that Title VII, unlike the FLSA, clearly affords protection for internal complaints, while the absence of such language in the FLSA suggests that such complaints are not covered by the Act. See 10 F.3d at 55 (citing EEOC v. Romeo Community Sch., 976 F.2d 985, 990 (6th Cir.1992) (Surheinrich, J., dissenting)).

But the Supreme Court in Kasten, in analyzing whether section 15(a)(3) of the FLSA protects oral complaints, rejected such reasoning. It noted, with respect to the oral complaint issue, that “[s]ome of this language [from other statutes’ anti-retaliation provisions] is broader than the phrase before us, but, given the fact that the phrase before us lends itself linguistically to the broader ‘oral’ interpretation, the use of broader language elsewhere may mean (1) that Congress wanted to limit the scope of the phrase before us to writing, or (2) that Congress did not believe the different phraseology made a significant difference in this respect.” 131 S. Ct. at 1333. In other words, the Supreme Court in a context analogous to this case concluded that, where the statutory language on its face could be read to establish that a complaint is protected, the mere fact that other statutes specify broader protection does not mean that Congress intended to leave such complaints unprotected. Id. Notably, in Minor the Fourth Circuit followed Kasten in determining that Congress’ failure to amend the FLSA by adopting protective language from Title VII was a “‘poor indication’” of congressional intent with respect to whether the FLSA protects internal complaints. 669 F.3d at 436 (quoting Schweiker v. Chilicky, 487 U.S. 412, 440 (1988)).

Thus, the decision in Kasten calls the soundness of this Court’s analysis in Genesee Hospital into doubt. Analyzing section 15(a)(3), the Supreme Court in Kasten eschewed reliance on other statutes’ specific protection in interpreting the scope of the FLSA’s anti-retaliation provision. It instead undertook an analysis of whether the plain language and policy considerations supported broad protection. See generally 131 S. Ct. at 1331-34; id. at 1332 (“[T]he phrase ‘any complaint’ suggests a broad interpretation that would include an oral complaint.”); id. at 1333 (“[A]n interpretation that limited the provision’s coverage to written complaints would undermine the Act’s basic objectives.”). This Court in Genesee Hospital wrongly relied on Title VII’s specific anti-retaliation language, and did not engage, as did the Supreme Court in Kasten, in either a thorough textual analysis or an analysis delving into the policy reasons underlying the FLSA’s anti-retaliation provision. 10 F.3d at 55.

b. Moreover, although it did not so hold, the reasoning of the Supreme Court’s Kasten decision supports the conclusion that internal complaints are protected. In determining that oral complaints under the FLSA are protected, the Kasten majority noted that “the phrase ‘filed any complaint’ contemplates some degree of formality,” because such formality is necessary to give an employer “fair notice” that a complaint about a violation of the Act is being asserted. 131 S. Ct. at 1334. The Kasten majority stated that to fall within the scope of the anti-retaliation 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.” Id. at 1335 (emphasis added). As the dissent pointed out, it would make little sense for the Supreme Court to even address the requisite level of formality needed to establish that one is asserting a statutory right unless one presumed internal complaints to be protected because “[f]iling a complaint with a judicial or administrative body is quite obviously an unambiguous assertion of one’s rights.” See id. at 1341 (Scalia, J., dissenting). The Kasten dissent concluded: “While claiming that it remains an open question whether intracompany complaints are covered, the opinion adopts a test for ‘filed any complaint’ that assumes a ‘yes’ answer.” Id.; cf. Minor, 669 F.3d at 433 (“Notwithstanding the dissent’s argument, we take the Kasten majority at its word. Therefore, although we find much of its reasoning applicable to our analysis, Kasten did not settle the question of whether intracompany company complaints are protected activity within the meaning of § 215(a)(3), and consequently does not directly control the outcome of this case.”).[4]

2. This Court permits a panel to overrule a prior panel decision based on a Supreme Court decision that casts doubt on the earlier opinion; indeed, on several occasions, a panel of the Second Circuit has overruled a prior panel’s decision after determining that the Supreme Court had cast doubt on the prior ruling. In Finkel v. Stratton Corp., a panel of this Court overruled a prior panel, stating that the general rule that “one panel of this court may not overrule the decision of a prior panel … does not apply where an intervening Supreme Court decision casts doubt on the prior ruling.” 962 F.2d at 174-75 (citing Kremer v. Chemical Constr. Corp., 623 F.2d 786, 788 (2d Cir.1980), aff'd, 456 U.S. 461 (1982); Boothe v. Hammock, 605 F.2d 661, 664 (2d Cir.1979)); see Union of Needletrades, Indus. & Textile Employees v. U.S. I.N.S., 336 F.3d 200, 210 (2d Cir. 2003) (reiterating the “casts-doubt” rule and holding that the “reasoning [of an intervening Supreme Court decision was] sufficiently broad to support” overruling a prior panel); Taylor v. Vt. Dept. of Educ., 313 F.3d 768, 782 (2d Cir. 2002) (overruling prior panel where Supreme Court called “continuing validity [of the precedent] into question”); cf. Gelman v. Ashcroft, 372 F.3d 495, 499 (2d Cir. 2004) (observing that panel can overrule precedent when Supreme Court decision casts doubt on it, but declining to do so where this Court had already affirmed the earlier precedent after the Supreme Court decision that supposedly cast it into doubt). Significantly, “[t]he intervening [Supreme Court] decision need not address the precise issue decided by the panel for this exception to apply.” In re Zarnel, 619 F.3d 156, 168 (2d Cir. 2010) (citing Wojchowski v. Daines, 498 F.3d 99, 106 (2d Cir. 2007)); see Rich v. Maranville, 369 F.3d 83, 89 (2d Cir. 2004) (“[A]lthough [the Supreme Court’s decision in] Johnson dealt only with supervised release, its logic extends to special parole as well.”).[5]

None of the Supreme Court cases at issue in these decisions explicitly overruled the earlier Second Circuit decision, but in nearly every case the Supreme Court decision either rebutted an important premise of the earlier Second Circuit decision or dictated a different step in the analysis that the court had previously missed.[6] Because the Supreme Court’s decision in Kasten reveals that the Second Circuit’s analysis in Genesee Hospital as to whether section 15(a)(3) protects internal complaints is fundamentally flawed, review of that decision by a panel of this Court is warranted.[7]

B. En Banc Hearing Is Appropriate If the Panel Declines to Reverse Genesee Hospital.

Due to the stark circuit split (the nine other circuits to have addressed this issue are in accord that internal complaints are protected, and a tenth has strongly suggested that it would so hold, see n.2 supra), as well as the Supreme Court’s decision in Kasten suggesting that Genesee Hospital was wrongly decided, this case presents a compelling basis for en banc review of the Genesee Hospital decision. See Fed. R. App. P. 35(b)(1)(B) (case may “present[] a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue”).

Thus, if the panel declines to overrule Genesee Hospital, this Court should grant en banc review if Neviaser petitions for an en banc hearing. See Fed. R. App. P. 35(b), (c). Or, in the absence of such a request, the panel should consider exercising its discretion to urge that the full Court conduct en banc review. Cf. Fed. R. App. P. 35 advisory committee’s note (pointing out that Rule “does not affect the power of a court of appeals to initiate in banc hearings sua sponte”); Hayden v. Pataki, 449 F.3d 305, 370 (2d Cir. 2006) (court, on its own initiative, consolidated case with similar case already pending before en banc court).

II. SECTION 15(a)(3) PROTECTS AN EMPLOYEE WHO FILES A COMPLAINT WITH HIS OR HER EMPLOYER ALLEGING VIOLATIONS OF THE ACT

Whether it is this panel or the en banc court that revisits Genesee Hospital, there are compelling reasons for this Court to reverse that decision and hold internal complaints protected. A plain language analysis of “any complaint” reveals that the term includes internal complaints. At minimum, the plain language of section 15(a)(3) does not exclude internal complaints and, if the plain language is not deemed conclusive, the underlying purposes of the FLSA compel an interpretation that protects those complaints.

A. The Plain Language Is Broad in Scope and Encompasses Complaints to One’s Employer.

When interpreting a statute, a court begins with the plain language. See In re Caldor Corp., 303 F.3d 161, 168 (2d Cir. 2002) (“Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.”) (citing Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)). Because section 15(a)(3) prohibits retaliation against an employee who has filed “any complaint” (emphasis added), it necessarily affords protection for different types of complaints, including those that might be filed with an employer.[8]

The plain and ordinary meaning of “any” is “one or some indiscriminately of whatever kind.” Merriam-Webster Online Dictionary (2011), available at http://www.merriam-webster.com; see Random House College Dictionary 61 (rev. ed. 1982) (defining “any” as “one or more without specification or identification,” and as “every; all”); cf. Kasten, 131 S.Ct. at 1332 (“[T]he phrase ‘any complaint’ suggests a broad interpretation that would include an oral complaint.”). The modifier “any” thus points to the broadest possible construction of “complaint,” a term which is defined to include “expression[s] of grief, pain and dissatisfaction.” Merriam-Webster Online Dictionary; see Random House College Dictionary 274 (rev. ed. 1982) (defining “complaint” as an “expression of discontent, pain, censure, grief, or the like”). These dictionary definitions are consistent with the colloquial usage of “any complaint” as encompassing a wide range of expressions of discontent. See Caldor, 303 F.3d at 168 (“We thus begin by inquiring whether the plain language of the statute, when given ‘its ordinary, common meaning,’… is ambiguous.”) (quoting Tyler v. Douglas, 280 F.3d 116, 122 (2d Cir. 2001)). Thus, expressions of discontent to one’s employer are surely included within “any complaint.” Indeed, nothing in the FLSA or the legislative history suggests that the complaint must be made externally to an administrative or judicial body in order to qualify for protection. Any such interpretation would read words into the provision that simply do not exist. Therefore, the broad phrase “any complaint” refutes a narrow construction of section 15(a)(3) that would limit the anti-retaliation provision to external complaints.

The fact that other statutes have used more explicit language to protect internal complaints is of no moment. As noted above, this Court in Genesee Hospital inferred that such language in Title VII indicates that internal complaints are unprotected under the FLSA. See 10 F.3d at 55 (citing EEOC v. Romeo Community Sch., 976 F.2d at 990 (Surheinrich, J., dissenting)). But the Supreme Court found this very argument unpersuasive with respect to whether oral complaints are covered, stating that Congress may “not [have] believe[d] the different phraseology made a significant difference.” Kasten, 131 S. Ct. at 1333. Kasten’s reasoning holds true for the question whether internal complaints are protected. See Minor, 669 F.3d at 436 (finding comparison to Title VII anti-retaliation provision covering internal complaints to be unpersuasive because of the 25-year gulf between passage of the FLSA and Title VII). As the Ninth Circuit put it:

[W]e disagree [with the Second Circuit’s Genesee Hospital decision] that the breadth of Title VII’s anti-retaliation provision dictates the construction we should give the FLSA provision. The FLSA was drafted some sixty-two years ago, at a time when statutes were far shorter and less detailed, and were written in more general and simpler terms. The fact that Congress decided to include a more detailed anti-retaliation provision more than a generation later, when it drafted Title VII, tells us little about what Congress meant at the time it drafted the comparable provision of the FLSA. In short, we find the view suggested by the defendants – that Congress’ choice of words in 1964 can resolve the meaning of words chosen in 1937 – to be unpersuasive.

Lambert v. Ackerley, 180 F.3d 997, 1005 (9th Cir. 1999) (en banc) (footnote omitted).

The broad plain-language meaning of “any complaint” in section 15(a)(3) has been recognized by the courts. The Seventh Circuit held that the plain language of the statute indicates that internal, intra-company complaints are protected because “the statute does not limit the types of complaints which will suffice, and in fact modifies the word ‘complaint’ with the word ‘any.’” Kasten v. Saint-Gobain Plastics, 570 F.3d 834, 838 (7th Cir. 2009), rev’d on other grounds, 131 S. Ct. 1325 (2011). The Ninth Circuit, in its en banc holding that employees who complain to their employer about an alleged violation of the Act are protected, concluded that the word “complaint” is modified only by the word “any,” and “[i]f ‘any complaint’ means ‘any complaint,’ then the provision extends to complaints made to employers.” Ackerley, 180 F.3d at 1004. Although the Ninth Circuit acknowledged the possibility of differing interpretations, it concluded that a broad reading was most consistent with both the statutory language and the underlying policies of the FLSA. Id.; cf. Valerio v. Putnam Associates, 173 F.3d 35, 41-42 (1st Cir. 1999) (although the phrase “filed any complaint” is “susceptible to differ[ent] interpretations,” “[t]he word ‘any’ embraces all types of complaints, including those that might be filed with an employer”; “[b]y failing to specify that the filing of any complaint need be with a court or an agency, and by using the word ‘any,’ Congress left open the possibility that it intended ‘complaint’ to relate to less formal expressions of protest . . . conveyed to an employer”); but see Minor, 669 F.3d at 436 (noting that “[b]ecause we find that ‘filed any complaint’ is ambiguous as to whether intracompany complaints are protected activity under the FLSA, we must move to other interpretive tools,” and ultimately holding internal complaints protected on policy grounds).

B. If the Statutory Language Alone Is Not Dispositive, the Policy Goals of Section 15(a)(3) Support a Reading that Covers Internal Complaints.

If the statutory language is deemed at all unclear, the FLSA’s statutory purposes compel a conclusion that internal complaints are covered. The Supreme Court’s decision in Kasten counsels that where the plain language does not yield an answer, one should determine what meaning will best allow the statute to function in accord with congressional intent. See 131 S. Ct. at 1333. As nearly all the courts of appeals have recognized, the remedial purposes of the FLSA strongly support interpreting the phrase “filed any complaint” broadly to include internal complaints. See, e.g., Hagan v. Echostar Satellite, LLC, 529 F.3d 617, 626 (5th Cir. 2008).

The Supreme Court has repeatedly recognized that Congress intended the FLSA to have broad reach in order to achieve its underlying remedial purpose of eliminating substandard working conditions for employees in covered industries. See Kasten, 131 S. Ct. at 1333; Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981); Rutherford Food Corp. v. McComb, 331 U.S. 722, 727 (1947). The Supreme Court “has consistently construed the Act ‘liberally to apply to the furthest reaches consistent with congressional direction.’” Tony & Susan Alamo Found. v. Secretary of Labor, 471 U.S. 290, 296 (1985) (quoting Mitchell v. Lublin, McGaughy & Assocs., 358 U.S. 207, 211 (1959)); see Chao v. Gotham Registry, Inc., 514 F.3d 280, 285 (2d Cir. 2008) (noting that “the Supreme Court consistently has interpreted the Act liberally and afforded its protections exceptionally broad coverage”) (citations omitted).

The FLSA’s anti-retaliation provision is especially critical to eliminating substandard working conditions and ensuring compliance with the substantive provisions of the FLSA, thereby providing strong justification for a broad reading of the provision. See Kasten, 131 S.Ct. at 1333 (“[A]n interpretation that limited the provision’s coverage to written complaints would undermine the Act’s basic objectives.”). Given the great number of workplaces – far too many for the government to effectively oversee – achieving compliance with the FLSA depends on employees’ vigilance and their willingness to divulge information about violations of the statute. See Mitchell v. DeMario Jewelry, 361 U.S. 288, 292 (1960) (“[E]ffective enforcement could thus only be expected if employees felt free to approach officials with their grievances,” as “detailed federal supervision or inspection of payrolls” is simply not feasible). Because one’s employer, and not the government, is frequently the body to which concerned employees bring their complaints, protecting such internal complaints is essential to promoting widespread compliance with the Act. Cf. Passaic Valley Sewerage Comm’rs v. U.S. Department of Labor, 992 F.2d 474, 478 (3d Cir. 1993) (noting, in the context of whistleblower case arising under the Clean Water Act, that “normal route” is for employees to bring grievances to their employer).

Allowing employers to wield the threat of discharge or other economic reprisal would chill internal reporting of possible FLSA violations and foreclose an important avenue for securing compliance with the Act. See DeMario Jewelry, 361 U.S. at 292 (“[I]t needs no argument to show that fear of economic retaliation might often operate to induce aggrieved employees quietly to accept substandard conditions.”); Ackerley, 180 F.3d at 1004 (“‘[N]arrow construction of the anti-retaliation provision could create an atmosphere of intimidation and defeat the Act’s purpose.’”) (quoting Valerio, 173 F.3d at 43); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir. 1989) (“The anti-retaliation provision of the FLSA was designed to prevent fear of economic retaliation by an employer against an employee who chose to voice such a grievance.”).

Therefore, any interpretation of section 15(a)(3) that fails to protect an employee who reports possible wage and hour violations to his or her employer eliminates an important compliance mechanism and should be rejected as contrary to the purposes of the FLSA. Congress’ core objective in enacting the FLSA – the elimination of substandard working conditions – “is best served by a construction of § 215(a)(3) under which the filing of a relevant complaint with the employer no less than with a court or agency may give rise to a retaliation claim.” Valerio, 173 F.3d at 43; see Minor, 669 F.3d at 437 (“[W]e conclude that an interpretation that limits § 215(a)(3)’s coverage to complaints made before an administrative or judicial body would overly circumscribe the reach of the anti-retaliation provision in contravention of the FLSA’s remedial purpose.”); Ackerley, 180 F.3d at 1004 (“‘[T]he animating spirit of the Act is best served by a construction of § 215(a)(3) under which the filing of a relevant complaint with the employer no less than with a court or agency may give rise to a retaliation claim.’”) (quoting Valerio, 173 F.3d at 43); Hagan, 529 F.3d at 626 (internal complaint constitutes protected activity under the FLSA’s anti-retaliation clause “because it better captures the anti-retaliation goals of that section”); White & Son, 881 F.2d at 1011 (“By giving a broad construction to the anti-retaliation provision to include [informal complaints made to employers], its purpose will be further promoted.”); see also Moore v. Freeman, 355 F.3d 558, 562 (6th Cir. 2004); Pacheco v. Whiting Farms, Inc., 365 F.3d 1199, 1206 (10th Cir. 2004); Romeo Community Sch., 976 F.2d at 989; Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir. 1984); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir. 1975). The fundamental purposes of the FLSA strongly favor a broad reading of section 15(a)(3) that covers internal complaints.[9]

A broad interpretation of section 15(a)(3) is supported by other policy considerations as well. Protecting employees’ internal complaints promotes early and informal resolution of pay disputes, which in turn decreases costs to employers and their employees. Thus, protecting employees’ internal complaints promotes resolution without the need for drawn-out, contested litigation. Indeed, many FLSA and EPA claims involve relatively small amounts of money that could be settled informally without resort to litigation. Any interpretation that internal complaints are not protected may encourage employees to file a lawsuit as a first recourse in order to protect themselves from retaliation. See Valerio, 173 F.3d at 43 n.6. Congress clearly did not intend for this result when it passed the anti-retaliation provision of the FLSA.

Additionally, many employers affirmatively encourage their employees to report suspected violations internally. Kasten, in discussing that the employer must receive fair notice of an employee’s complaint, noted that one policy consideration in interpreting the anti-retaliation language is whether it promotes fairness to employers. See 131 S. Ct. at 1334 (“The Act also seeks to establish an enforcement system that is fair to employers.”). Employers that want to hear from their employees about possible FLSA violations so that they can be resolved informally will surely welcome having a legal standard in place by which employees know they are legally protected when they invoke workplace rights to their supervisor.

Further, the interpretation that internal complaints are not protected creates a trap for unwary employees who comply with company procedures to report concerns internally only to find themselves facing retaliation for having complained to their employer rather than a governmental agency or court. See Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 904 (2007) (criticizing as “flawed” a statutory interpretation that “creat[es] legal distinctions that operate as traps for the unwary”). Indeed, such an interpretation would give “an incentive for the employer to fire an employee as soon as possible after learning the employee believed he was being treated illegally,” because the employee’s conduct would be unprotected until such time as he or she registered the complaint with a government agency. Valerio, 173 F.3d at 43. This result is plainly contrary to congressional intent and the remedial purpose of the FLSA. Thus, if the statutory language of section 15(a)(3) is deemed ambiguous as to whether it protects internal complaints, the policy reasons in favor of such protection argue for a broad reading of that section.

C. The Secretary and EEOC’s Longstanding Interpretation that “Filed Any Complaint” Encompasses Internal Complaints Is Reasonable and Entitled To Deference.

The long-held views of the Secretary and the EEOC that internal complaints are protected should be accorded weight here as well. The Supreme Court in Kasten gave a “degree of weight” to the Secretary’s and EEOC’s view that oral complaints were covered, based on the reasonableness of the view, its consistency with the statute, and the length of time to which it had been adhered. See 131 S. Ct. at 1335-36.

On the question of whether internal complaints are protected, the agencies’ views are similarly well-considered and long-held. See Minor, 669 F.3d at 439 (“[B]ecause the Secretary and the EEOC have consistently advanced this reasonable and thoroughly considered position [that internal complaints are protected], it ‘add[s] force to our conclusion.’”) (quoting Kasten, 131 S.Ct. at 1335); see also, e.g., Br. for the United States as Amicus Curiae, Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (U.S. June 21, 2010); Br. for the Secretary of Labor and EEOC as Amici Curiae, Minor v. Bostwick Laboratories, Inc., No. 10-1258 (4th Cir. June 23, 2011); Br. for the Secretary of Labor as Amicus Curiae, Kasten v. Saint-Gobain Performance Plastics Corp., No. 08-2820 (7th Cir. Nov. 19, 2008); Br. for the Secretary of Labor as Amicus Curiae, Lambert v. Ackerley, Nos. 96-36017, 96-36266, and 96-36267 (9th Cir. Apr. 12, 1999); Br. for the EEOC as Amicus Curiae, Lambert v. Ackerley, Nos. 96-36017, 96-36266, and 96-36267 (9th Cir. Apr. 22, 1999); Br. for the EEOC, EEOC v. Romeo Cmty. Sch., No. 91-2181 (6th Cir. Jan. 2, 1992); Br. for the EEOC, EEOC v. White & Son Enters., No. 88-7658 (11th Cir. Mar. 1, 1989). Moreover, the EEOC has set forth this position in its compliance manual issued to field offices. See 2 EEOC Compliance Manual, Section 8: Retaliation §§ 8-I(A), 8-II(B) & n.12 (May 20, 1998), http://www.eeoc.gov/policy/docs/retal.pdf; see also Federal Express Corp. v. Holowecki, 552 U.S. 389, 399 (2008) (explaining that EEOC compliance manuals “reflect a body of experience and informed judgment to which courts and litigants may properly resort for guidance”) (internal quotation marks omitted).

CONCLUSION

For the foregoing reasons, the Secretary and the EEOC request that this Court hold that the district court erred when it concluded that the “filed any complaint” provision of section 15(a)(3) of the FLSA does not cover internal complaints.

Respectfully submitted,

P. DAVID LOPEZ M. PATRICIA SMITH

General Counsel Solicitor of Labor

CAROLYN L. WHEELER JENNIFER S. BRAND

Acting Associate General Counsel Associate Solicitor

DANIEL T. VAIL PAUL L. FRIEDEN

Acting Assistant General Counsel Counsel for Appellate Litigation

PAUL D. RAMSHAW /s/ Paul L. Edenfield
Attorney PAUL L. EDENFIELD

Attorney

Equal Employment U.S. Department of Labor

Opportunity Commission Office of the Solicitor

Office of General Counsel Room N-2716

131 M. St. N.E., 5^th Floor 200 Constitution Avenue, N.W.

Washington, D.C. 20507 Washington, DC 20210

(202) 663-4721 (202) 693-5652

[1] The facts set forth here are from the district court’s decision. See Neviaser, 2012 WL 3028464, at *1. The district court, for the purpose of deciding a Rule 12(b)(6) motion to dismiss, assumed the facts alleged by Neviaser, see Complaint, Neviaser v. Mazel Tec, March 7, 2012, to be true. See 2012 WL 3028464, at *1.

[2] See Minor v. Bostwick Laboratories, 669 F.3d 428, 438 (4th Cir. 2012) (internal complaints are protected); Kasten v. Saint-Gobain Plastics, 570 F.3d 834, 838 (7th Cir. 2009) (same), rev’d on other grounds, 131 S. Ct. 1325 (2011); Hagan v. Echostar Satellite, LLC, 529 F.3d 617, 626 (5th Cir. 2008) (same); Lambert v. Ackerley, 180 F.3d 997, 1008 (9th Cir. 1999) (en banc) (same); Valerio v. Putnam Associates, 173 F.3d 35, 43 (1st Cir. 1999) (same); EEOC v. Romeo Community Sch., 976 F.2d 985, 989 (6th Cir. 1992) (same); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir. 1989) (same); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir. 1984) (same); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir. 1975) (same). Although the Third Circuit has not directly ruled on this issue, it has construed the FLSA anti-retaliation provision broadly. See Brock v. Richardson, 812 F.2d 121, 124–25 (3d Cir. 1987) (holding that, because of the FLSA’s remedial purpose, a retaliatory firing based on an employer’s belief that an employee had filed a complaint with the government – even when he had not – was prohibited by section 15(a)(3)). District courts within the Third Circuit have accordingly held internal complaints to be protected. See, e.g., Chennisi v. Communications Const. Group, LLC, No. 04-4826, 2005 WL 387594, at *2 (E.D. Pa. 2005).

[3] The Second Circuit acknowledged “that this issue was not presented to this court, and that the lower court assumed that informal complaints would be sufficient to state a claim under the EPA. However, we have discretion to consider and decide sua sponte a dispositive issue of law that, taking a plaintiff’s factual allegations to be true, would prevent a plaintiff from recovering.” Genesee Hospital, 10 F.3d at 56 (citations omitted).

[4] The decision in Minor on this point is not in any way inconsistent with the “casting doubt” argument being advanced here: although it found that Kasten was not controlling, it found the Kasten majority’s reasoning to be highly persuasive. Minor, 669 F.3d at 433.

[5] A Second Circuit panel that seeks to overturn a prior panel’s ruling routinely ensures that all judges are aware of, and do not object to, the overruling of the precedent. See Taylor, 313 F.3d at 786 n.13; Finkel, 962 F.2d at 175 n.1.

[6] For example, in Finkel, the Second Circuit reconsidered its previous holding that a fraud provision of the Securities Act conferred a private right of action. In finding a private right, it had relied in part on its conclusion that the provision contained a scienter requirement. But an intervening Supreme Court decision established there was no scienter requirement, and thus the case for a private right of action was weakened. See 962 F.2d at 174-75.

[7] Notably, the Second Circuit, in determining whether a panel can overrule a prior panel, considers how other courts of appeals have construed the Supreme Court decision at issue. See Finkel, 962 F.2d at 175. In its post-Kasten decision, the Fourth Circuit in Minor held that, although Kasten did not directly hold that internal complaints were protected, Kasten’s reasoning nonetheless led to that very conclusion. See 669 F.3d at 433 (observing that court “f[ound] much of [Kasten’s] reasoning applicable to our analysis”).

[8] The fact that the complaint must be “filed” does not suggest that its recipient must be a government entity. In the employment context, employees commonly “file” grievances and other protests with the employer. See Lambert v. Ackerley, 180 F.3d 997, 1004 (9th Cir. 1999) (en banc) (“[W]e are also convinced that the statutory term ‘filed’ includes the filing of complaints with employers. When drafting the language of § 215(a)(3), it is reasonable to assume that Congress was aware of the practice, in many union and non-union workplaces, of requiring employees to ‘file’ grievances and complaints with their union and/or employer before instituting any further internal or external proceedings. Given the widespread use of the term ‘file’ to include the filing of complaints with employers, it is therefore reasonable to assume that Congress intended that term as used in § 215(a)(3) to include the filing of such complaints.”).

[9] The courts, recognizing the importance in a remedial scheme of protecting workplace whistleblowers, have taken a broad view of anti-retaliation provisions in other statutes as well. See Ackerley, 180 F.3d at 1007 (noting that “federal courts have consistently construed anti-retaliation provisions analogous to the FLSA’s as extending protection to complaints made by employees to their employers”). The Supreme Court held that the National Labor Relations Act’s (“NLRA”) anti-retaliation language – covering employees who have “filed charges or given testimony,” 29 U.S.C. 158(a)(4) – “protect[s] workers who neither filed charges nor were ‘called formally to testify’ but simply ‘participate[d] in a [National Labor Relations] Board investigation.’” Kasten, 131 S. Ct. at 1334 (quoting NLRB v. Scrivener, 405 U.S. 117, 123 (1972)). Recognizing the “similar enforcement needs” of the contemporaneously-enacted FLSA and NLRA, the Supreme Court looked at the FLSA anti-retaliation language through the same broad prism. See Kasten, 131 S. Ct. at 1334.