FLSA Protects Verbal Complaints

April 7, 2011  |  From HRCalifornia Extra

An employee claimed retaliation by his employer after being fired for making verbal complaints about the company’s failure to comply with the Fair Labor Standards Act (FLSA). The issue before the court was whether a verbal complaint is enough to trigger the FLSA’s protections against an employer retaliating against the employee for making such complaints.

The FLSA is the federal law that establishes overtime pay and minimum wage standards for full-time and part-time workers in the private sector. The lower courts dismissed the case because the employee’s complaint was verbal and the courts concluded that the FLSA’s anti-retaliation provision does not cover oral complaints. The U.S. Supreme Court disagreed and sent the case back to the lower court to determine whether or not the employee could meet the notice requirement of the FLSA. Kasten v. Saint-Gobain Performance Plastics Corp., 2011 U.S. Lexis 2417

Kasten claimed his employer located company time clocks in such a way that employees were prevented from receiving credit for time spent putting on and taking off their required protective gear. Kasten argued that the employer terminated him because he verbally complained about the time clock location and the failure to pay employees. Kasten testified that he brought the time clock location to the attention of his shift supervisor, a human resources employee and the operations manager, in accordance with the company’s internal grievance-resolution process.

The employer denied that Kasten had made any significant complaints about the location of the time clock. The employer’s reason for the termination was that despite repeated warnings, Kasten continuously failed to clock in and out as required.

The U.S. Supreme Court accepted the case because the different federal courts disagreed on whether a verbal complaint is sufficient to trigger the FLSA’s anti-retaliation provision. The Court reviewed the FLSA’s history and the possible meaning of "file" when used in conjunction with "filing" a complaint. The Court found that limiting claims to only those that involved a written complaint would undermine the FLSA’s purpose — to protect employees in the workplace — and would discourage employees from complaining via internal grievance procedures.

The employer argued that fair notice of a complaint is required, and that an oral complaint could lead to a retaliation complaint when the employer interpreted an employee’s "complaint" as merely "letting off steam."

The Court agreed that for the FLSA’s anti-retaliation provision to be triggered, a complaint must be "clear and detailed [enough] for a reasonable employer to understand" that it is a complaint.

Best Practices

  • Take all complaints seriously, document and investigate complaints as needed.
  • Train supervisors and managers to handle complaints or refer them to the appropriate person in accordance with company policy.
  • Before terminating an employee, review the employee’s personnel file and discuss any complaints from the employee with legal counsel.

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