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March 23‚ 2011
Supreme Court Expands Antiretaliation Protection
to Oral Complaints of Wage/Hour Violations
By Martha J. Zackin
Employers have long been aware that a failure to investigate
complaints of workplace discrimination or harassment may lead to
significant liability, even if those complaints are made orally or are
otherwise informal. On March 22, in Kasten v. Saint-Gobain Performance
Plastics Corp., the Supreme Court made clear that employers ignore
wage-related complaints at their own risk, by holding that even oral
complaints fall within the antiretaliation provision of the Fair Labor
Standards Act (FLSA, or the Act). This decision resolves a conflict among
various Courts of Appeals, some of which include oral complaints within the
protections afforded by the FLSA’s antiretaliation provision (the 5th and
9th Circuits, covering Texas and California, among other states) and at
least one which does not (the 2nd Circuit, covering New York, Connecticut,
and Vermont).
The FLSA describes various rules concerning minimum wages,
maximum hours of work, and overtime pay. It also forbids employers from
retaliating “against any employee because such employee has filed any
complaint… under or related to” the Act. The sole question before the
Supreme Court was whether the three words—”filed any complaint”—encompass
oral as well as written complaints. The Court, in a 6-2 decision, found
that they do.
In Kasten, the plaintiff, Kevin Kasten, complained to
his employer that workers were required to punch in and out on time clocks
that were located between the area where they put on and took off their
work-related protective gear and the area in which they actually worked.
Under the law, Mr. Kasten rightfully claimed, workers are entitled to be
paid for time spent donning and doffing certain required protective gear
and walking to work areas. Therefore, according to Mr. Kasten, the
placement of the time clocks resulted in workers not being properly paid.
After he was discharged for repeatedly failing to record his comings and
goings on the time clock, he sued, claiming that he was fired in
retaliation for complaining about his employer’s FLSA violations.
After examining dictionary definitions of the word “file,”
usage of the word by legislators, administrators, and judges, and the
intent of Congress when it passed the Act in 1938, the Court found that an
oral complaint is “filed” for purposes of the FLSA’s antiretaliation
provision if it is sufficiently clear and detailed that a reasonable
employer would understand that the employee was asserting his or her rights
under the Act.
The Court provided no guidance as to what constitutes a
“sufficiently clear and detailed” oral complaint. So what should employers
do?
First, employers should make certain that their
managers, supervisors, and HR staff are well trained and understand that
complaints come in all shapes and sizes and need not be in writing, use any
special words, or follow any particular format. Any complaint of unlawful
or inappropriate conduct, whether made orally or in writing, should be
taken seriously, and reported immediately to HR or as otherwise provided in
company policies.
Second, employers should ensure that their complaint-
and investigation-related policies and procedures explicitly cover
complaints of wage and hour violations and other violations of law, as well
as complaints of discrimination and harassment.
Third, employers should be sure to remind managers
and supervisors that it is unlawful and unacceptable to retaliate against
an employee who has made a complaint.
Fourth, when considering an adverse action against an
employee who has made a complaint, it is important to confirm that the
action is being taken for legitimate performance or other business reasons
and not because the employee made a complaint. Consulting with counsel when
dealing with these situations can help reduce the risk of a successful
retaliation claim.
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