The U.S. Supreme Court recently ruled that an employee’s oral complaint was sufficient to trigger protection from retaliation under the federal Fair Labor Standards Act (FLSA). Kasten v. Saint-Gobain Performance Plastics Corp. (2011).
Kasten, a Wisconsin factory worker, verbally complained that the company was violating the law by placing the time clock in a place where workers could not punch in or out until after donning or doffing protective gear required for the clean room environment. Kasten thought that workers should be paid for the time. Kasten told supervisors that he “was thinking about starting a lawsuit” which he said “they would lose.” The company fired Kasten for failing to properly clock in and out, and he sued, alleging that his discharge was in retaliation for his complaints.
The issue in this case was whether Kasten’s oral complaints to his private employer were sufficient to trigger the FLSA’s anti-retaliation protections. The Court ruled that complaints did not have to be in writing to be considered “filed.” As long as the oral complaint is “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,” it is protected.
Due to a procedural issue, the Court did not address the question of whether this oral complaint could be made to the employee’s private employer or whether it must be made to a court or government agency. The lower courts and the dissenting opinion said the complaint must be made to a court or agency to be protected.
For now, it is safer for employers to assume that anti-retaliation protections attach to oral complaints made to private companies. Employers should investigate and respond to employee complaints. And use caution when discharging employees who have complained, assuring that the reason for separation is well-established and well-documented.