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Listen Up – Even Oral Complaints Can Be the Basis of a Retaliation Claim

Many an irate employee has exclaimed “That’s not right!  I’m going to report you for that!”  Even though this complaint is not made formally in writing, it needs to be taken seriously.  The Supreme Court in Kasten v. Saint-Gobain recently ruled an employer can be guilty of retaliation against an employee whose only protected act is an oral complaint of violations of the Fair Labor Standards Act (FLSA). 

In this case, the employee complained to management that the time clock was illegally located because employees could not practically record time spent donning and doffing their work clothes.  The employee told this to management in a conversation and said he was going to file a complaint under the FLSA.  The employee was soon fired for failing to properly clock in. 

The employee brought suit for retaliation under the FLSA.  He claimed his employer fired him because he threatened to file a complaint.  The employer argued he was fired for failing to follow proper procedures, but even if that was not the case, an employee must make a complaint in writing in order for him to have a claim for retaliation.  In addition, the employer argued the FLSA only covers complaints to a government agency, not internal complaints to an employer. 

The issue of whether or not an employee’s oral complaint brings him under the retaliation provisions of the FLSA has been a highly contested issue.  Five circuit courts have said oral complaints count, while three have said they do not.  The Supreme Court decided to take this case in order to resolve the controversy.

The FLSA provides an employer cannot “discriminate against an employee because such an employee has filed any complaint” or instituted an action against the employer under the FLSA.  The Court looked at the general meaning of “filed,” finding it can mean oral or written complaints.  It then specifically determined that under the FLSA, oral complaints were included.  If “filed any complaint” meant only written complaints, it would prevent illiterate people or those who do not speak English from making a complaint.  In addition, it would limit the statute’s reach and prohibit the use of telephone hotlines (currently used by several states) for reporting complaints.  Both the Department of Labor and the Equal Employment Opportunity Commission currently accept oral complaints when enforcing their statutes. 

The Court did go on to say that a mere mention of a complaint is not enough.  The statement by the employee must be so clear as to put a reasonable employer on notice that the employee is asserting his rights under the FLSA.  The Court failed to address the question of whether an employee’s complaint must be to the government, or whether it can only be brought to an employer. 

For now, employers should assume internal complaints are protected by the FLSA’s retaliation provisions.  It is important employers train all supervisors and managers on how to spot oral complaints of illegal conduct by the employer.  Every complaint should be taken seriously, and a formal investigation should take place.  The depth of the investigation should vary with the details and substance of the complaint.

Brody and Associates regularly advises management on complying with state and federal employment laws including wage and hour laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.