• Employees Who Make Oral Complaints Are Protected from Retaliation Under the Fair Labor Standards Act
  • May 23, 2011
  • Law Firm: Chambliss Bahner Stophel P.C. - Chattanooga Office
  • The U.S. Supreme Court ruled on March 22 that the Fair Labor Standards Act's prohibition against retaliation protects employees who make oral complaints about practices prohibited by the FLSA as well as employees who make written complaints. The decision in the case of Kasten v. Saint-Gobain Performance Plastics represents an expanded view of FLSA-protected activity, requiring employers to be more careful than ever to avoid overlooking or dismissing complaints that may trigger protection from retaliation.

    Kasten “Raised a Concern” with His Supervisor 

    Kevin Kasten informed his shift supervisor that he believed the employer’s location of its timeclocks violated the FLSA.  In particular, he claimed that the location prevented workers from being properly compensated for the time spent "donning and doffing" their work clothes. Kasten verbally raised this concern on multiple occasions to different levels of management through use of the company’s internal grievance-resolution procedure.  After he was terminated because he failed to properly record his work time on the timeclock, Kasten filed a lawsuit alleging retaliation under the FLSA.

    Protection of Oral Complaints Fulfills the Purpose of the FLSA

    The Court interpreted the FLSA’s anti-retaliation provisions broadly, recognizing the FLSA’s objective of prohibiting detrimental labor conditions and requiring minimal standards of living for workers.  The Court noted that protecting verbal complaints is especially critical for individuals who may find it difficult to submit written complaints, such as illiterate, less educated, or overworked employees.  Furthermore, requiring written complaints would arguably interfere with the use by government agencies of hotlines, interviews, and other oral methods of receiving complaints.

    Fair Notice Is Required

    In response to the employer’s argument that the FLSA’s enforcement system is also intended to be fair to employers, the Court agreed that the statute requires, at a minimum, “fair notice.” The Court described the following standard for either an oral or written complaint to satisfy this requirement: “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.”

    Employers Should Recognize, Document and Respond to Protected Complaints

    Because a protected oral complaint could be easily disregarded, particularly by lower levels of supervision, it is critical that all levels of management be properly trained to recognize and respond to such complaints. Once an employee makes an oral complaint regarding an FLSA issue, it should be promptly reported to Human Resources, accurately documented and thoroughly investigated.  Any potentially adverse action involving the complaining employee should be closely scrutinized to ensure that the action is consistent with the company's policies and past practices.

    If you have any questions about this article or would like additional information, please contact a member of our Labor & Employment Law Section.