Employees' Oral Wage and Hour Complaints Trigger FLSA Protection

Charles D. Lawson

Summary. Earlier this year, in Kasten v. Saint-Gobain Performance Plastics Corp.,1 the Supreme Court held for the first time that employees who make an oral complaint to management about matters covered by the Fair Labor Standards Act (FLSA) are protected from retaliation at the hands of their employer. The lower courts who originally heard the case had concluded that the FLSA only protects employees who make written complaints.

Facts. Kasten filed suit alleging he had been fired in retaliation for complaining to his employer that the location of company time clocks was such that employees were unable to clock in until after they had put on required protective clothing and walked to their work areas, preventing them from being paid for these necessary pre-work activities. Kasten claimed he made several oral complaints, but acknowledged he made no written complaint.

At trial, the district court ruled that the anti-retaliation provision of the FLSA (prohibiting retaliation against anyone who "filed any complaint")2 protects only written complaints, and granted summary judgment in favor of Kasten's employer, who claimed that Kasten was fired for performance reasons. The Seventh Circuit Court of Appeals agreed that oral complaints were unprotected, prompting an appeal to the U.S. Supreme Court.

Beginning with the text of the statute itself, the Court considered whether the FLSA's anti-retaliation provision protecting individuals who have "filed any complaint" encompassed spoken complaints as well as complaints made in writing. The Court concluded that the phrase itself, as well as similar wording in the rest of the FLSA and comparable remedial statutes, did not answer the question. Pointing to what it said were the "Act's basic objectives," however, including maintaining minimum living standards (wage, hour and overtime), and protecting those who complain about substandard conditions from fear of economic retaliation, the Court concluded that protecting oral complaints furthered the overall purposes of the Act. The Court noted that protecting oral complaints was particularly important for the illiterate and the uneducated, since they tend to be poor, and therefore in greater need of protection, while at the same time less able to adequately prepare written complaints regarding working conditions that violate the FLSA.

Lessons for Employers. Given the Court's expansive reading of the anti-retaliation provision of the FLSA, combined with the aggressive new posture of the Department of Labor in wage and hour issues, employers must be more cautious than ever when dealing with employees regarding issues implicating the Act's coverage. The safest course in dealing with employee complaints that raise an issue relating to matters embraced by the FLSA is to treat each complaint, whether made during a conversation between an employee and management, or as part of a formal written complaint, as triggering the Act's protections.

In other words, if an employee raises an issue under the FLSA, consider that employee to be within the zone of protection of the Act, and proceed accordingly in future dealings with the employee. First, if future disciplinary issues arise with the employee, ensure that company policies are being applied in a fair and consistent matter. Second, document everything. Third, consult with labor and employment counsel before taking major disciplinary action such as suspension and/or termination to ensure that all bases are covered. In this employee-friendly enforcement environment, caution is the word of the day.

If you have any questions regarding this article or other wage and hour issues, please contact the author or any member of our Labor and Employment Group.

About the author: Mr. Lawson received his B.S. from the University of Tennessee at Chattanooga, magna cum laude, in 1994, and his J.D. from Vanderbilt University in 1997 where he was elected to the Order of the Coif. He is a member of GKH's Labor and Employment group and specializes in all phases of the employer-employee relationship, including wage and hour, FMLA, ADA, unemployment compensation, and discrimination/harassment law. He provides regular employer counseling on issues ranging from workplace policy development and labor law compliance to non-competition and confidentiality issues. He also defends employment claims filed with administrative bodies such as the EEOC and the Tennessee Human Rights Commission, as well as claims filed in state and federal court. Mr. Lawson's work with employers is designed to educate them about particular areas of the law governing the employment relationship, with a focus on minimizing exposure to employment-related claims and providing cost-effective litigation strategies should litigation arise.

1 http://bit.ly/hXzj9A

2 29 U. S. C. §215(a)(3).