Main Menu
FLSA Protects Employees Who File Oral Complaints

In a case that may significantly expand the risk of retaliation lawsuits by employees, the United States Supreme Court recently held that the Fair Labor Standard Act’s (FLSA) antiretaliation provision protects employees who file oral complaints.

In Kasten v. Saint-Gobain Performance Plastics Corp., an employee claimed that he had been discharged after he orally complained to supervisors and the human resources manager that the placement of timeclocks violated the FLSA. The employee noted that the location of the timeclocks prevented workers from receiving credit for time spent donning and doffing required protective gear and walking to work areas. A subsequent lawsuit found this practice to be unlawful.

The FLSA’s antiretaliation provision states that it is unlawful for an employer “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint....” The district court dismissed the case after concluding that the FLSA did not cover oral complaints because only written complaints are “filed.”

Reversing the dismissal, the Supreme Court broadly interpreted the phrase “filed any complaint” to include both oral and written complaints. The Court acknowledged, however, that this language “contemplates some degree of formality” and requires that the employer receive “fair notice that a grievance has been lodged.” The Court further explained that complaints protected by the FLSA’s antiretaliation provision “must be sufficiently clear and detailed for a reasonable employer to understand it.”

The Court declined to address whether the statute protects complaints made to private employers or only complaints made to government agencies. Employers should know, however, that a majority of the courts to address this issue, including the Sixth and Seventh Circuits (which receive cases from states including Kentucky, Indiana, Ohio and Tennessee) have concluded that the FLSA protects informal complaints to employers.

What Should Employers Do?

Recent Supreme Court decisions have continued to broadly interpret the antiretaliation provisions contained in federal employment statutes. Therefore, employers should carefully evaluate any personnel actions that will affect employees who have previously complained (either orally or in writing) of violations of wage and hour or antidiscrimination statutes.

Until we receive more guidance from the courts, employers may seek to minimize risk by drafting or revising an internal complaint procedure that requires all complaints be made orally or in writing to a specific job position or place. For example, the procedure could require all complaints (e.g., that policies are not being followed or the Company is acting wrongfully) be made to the Director of Human Resources or the Human Resources Department. If employees wish to complain after hours or on weekends, the Company could install a dedicated telephone line with a recording machine that time stamps when the recording is made.

If a complaint procedure is to be successful, it is critical to ensure that someone is trained on how to respond, investigate and document properly, and move the process to someone with authority to resolve the matter.

If you have questions regarding the antiretaliation provision, please contact any member of Greenebaum’s Labor and Employment Practice Group.

Even though the content of the above Greenebaum Doll & McDonald e-bulletin is primarily informative, state and federal law obligates us to inform you that THIS IS AN ADVERTISEMENT. You have received this advisory because you are a client or friend of the firm.

About Greenebaum Doll & McDonald PLLC
Greenebaum Doll & McDonald PLLC is a widely-respected business law firm with approximately 150 professionals in five offices, serving local, national and international clients in virtually every industry.

Copyright 2011 Greenebaum Doll & McDonald PLLC.  All Rights Reserved.

  • Partner

    Phil is a partner and former co-chair of the Labor and Employment Department. He represents employers in defending against employment-related claims in both federal and state courts. He represents clients involving covenants not ...



Recent Posts




Back to Page