A Human Resources E-Alert

Full text of the Court's opinion

The federal Fair Labor Standards Act (FLSA) prohibits employers from discriminating against an employee because the employee has “filed any complaint.” Last month, in Kasten v. Saint-Gobain Performance Plastics Corp., the United States Supreme Court decided that oral complaints of an FLSA violation are protected activity under this anti-retaliation provision.

Kasten had verbally complained to company officials on several occasions that employees were not being paid for time spent donning and doffing their work clothing as a result of the placement of the time clock. Kasten was later terminated and sued the company alleging retaliation in violation of the FLSA. The lower courts dismissed the case because the oral complaints were not “filed” and thus could not trigger the FLSA’s protection.

The Supreme Court found that the FLSA’s use of the word “filed” did not automatically mean that a verbal complaint would not be covered. Instead, a complaint could be verbal or written, but it 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.”

In reaching the decision, the Court considered a number of factors. For example, at the time the FLSA was passed in 1938, there was a high rate of illiteracy among factory workers. The Department of Labor has consistently held that the phrase “filed any complaint” covers oral as well as written complaints. The Court also opined that limiting the scope of the FLSA’s anti-retaliation provision to the filing of written complaints would reduce enforcement flexibility, such as the use of hotlines, interviews and other oral methods to receive complaints. The Court also noted that limiting the FLSA’s anti-retaliation provision only to written complaints would “undermine the Act’s basic objectives” and would discourage use of informal workplace grievance procedures.

The Court sidestepped another important FLSA retaliation issue. The Court refused to address the employer’s argument that an oral “complaint” was protected by the FLSA only if it was made to a governmental entity, as opposed to an internal complaint made by an employee to the employer. Even though appellate courts are split on this issue, the Court chose not to address the issue because the question was not raised in the briefs seeking review of the case and it was not necessary to the resolution of the question at issue.

Although the internal complaint issue was not resolved by the Court, employers must be aware that internal wage and hour complaints are protected in Ohio. The Sixth Circuit Court of Appeals (which covers Ohio) has held that the FLSA’s anti-retaliation provision protects employees who make oral internal complaints to their employers. Also, Ohio’s wage and hour law likely protects verbal complaints because the law protects an employee who has “made any complaint,” and explicitly protects employees from retaliation when the employee has made a complaint to the employee’s employer.

The U.S. Supreme Court’s ruling underscores the importance for clear policies and supervisor training on the proper handling of employee complaints. Internal wage and hour complaints must be taken seriously, whether they are written or verbal. Oral complaints should be documented. All complaints should be investigated and the investigation should be documented. And, an employer must take care not to retaliate against an employee that engages in such protected activity.