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Opinion: Oral complaints may trigger law's protection

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Employers beware.

The U.S. Supreme Court recently held in Kasten v. Saint-Gobain Performance Plastics Corp. that even an employee’s oral wage-and-hour complaint can trigger the Fair Labor Standards Act’s anti-retaliation protections.

As a result of this Wisconsin case, employers are left wondering when a comment constitutes a complaint and how to prepare supervisors to respond.

In a nutshell, Ken Kasten claimed his former employer, Saint-Gobain, improperly terminated him in retaliation for verbally complaining to his supervisor about the location of the company’s time clocks. He claimed he did not get paid for “donning and doffing” time spent preparing for and standing down from duty. Saint-Gobain claimed it fired
Kasten for not correctly keeping his time card. Among other comments to his supervisors, Kasten told them he “was thinking about starting a lawsuit.”

The FLSA prohibits employers from discharging or otherwise discriminating against an employee because the employee has “filed any complaint” or begun any FLSA-related proceeding.

The Supreme Court held the phrase “filed any complaint” was broad enough to include the sort of verbal comments made by Kasten.

By a 6-2 majority, the court ultimately concluded Kasten’s comments to his supervisor sufficiently placed Saint-Gobain on notice he was engaging in FLSA-protected activity.

Responding to a concern that employers may not know whether an employee is making a protected complaint or simply blowing off steam, the Supreme Court offered this guidance: A complaint must be sufficiently clear and detailed for a reasonable employer to understand the employee is asserting FLSA-protected rights, given both the complaint’s content and context.

The Kasten case expands the concept of improper retaliation under federal wage-hour laws. An employee’s utterances, even to a low-level manager, can be legally significant.

For instance, a shop-level employee typically raises wage-hour complaints to his supervisor, and – more often than not – the supervisor doesn’t think he is responsible for handling them. Such a seemingly informal oral complaint could subject an employer to liability under the FLSA if the company terminates the employee based on the complaint.

Unfortunately, the Supreme Court declined to address the related matter of whether strictly internal employee complaints – those communicated solely to the employer but not to a government agency or court – trigger the FLSA’s anti-retaliation protections.

Additionally, the court’s guidance regarding the “content and context” of employee verbal complaints remains vague, leaving for another day the question: Are all employee complaints to management about pay rates, salary levels or sizes of pay increases now FLSA-protected activity?

Nevertheless, the Kasten case’s broadened interpretation of what it means to file a complaint under the FLSA’s anti-retaliation provision eases an employee’s path to an FLSA retaliation claim. Employers must take extra care to remain in compliance with the FLSA.

Many employees raise pay-related complaints first, and perhaps only, to front-line supervisors who could influence employment decisions made by someone in a more remote position.

Thus, proactive employers should step up their efforts to train supervisors about company policies and procedures, specifically regarding their duty to report verbal complaints to the company’s human resources department or upper management, as well as addressing how retaliation laws apply in the workplace. The Kasten case reaffirms an employer’s responsibility to its employees to adequately investigate complaints, no matter how they are received.

While it is likely many proactive employers were already treating informal, verbal complaints of FLSA violations as protected activity before this case, the Kasten decision serves as stark notice of an employer’s responsibilities regarding its employees.

In responding to oral complaints, employers should request employees confirm their complaints in writing to reduce the risks of misunderstandings and misperceptions.

Employers also would be well-served to clearly document reasons for terminations, demotions or other adverse employment actions so they can better defend themselves against any FLSA retaliation claims.

Jay M. Dade is of counsel with Polsinelli Shughart PC in Springfield. His practice focuses on management-side labor and employee relations law and business litigation. He may be reached at jdade@polsinelli.com.[[In-content Ad]]

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