Oral Employee Complaints Protected By The FLSA

May 1, 2011

(Published in the New Hampshire Business Review, May 2011)

Q.  Sue, the HR Director for Alpha Corporation, is orally told by an employee, Jack, that he believes he should be receiving overtime pay.  She now wants to terminate his employment based on performance problems.  Does Sue need to worry about a retaliation claim even though Jack’s statement was only oral?

A.  The United States Supreme Court recently addressed this issue in the decision of Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834.  Petitioner Kevin Kasten spoke with his supervisors about his belief that the location of the time clock prevented employees from receiving credit for the time spent putting on and taking off work clothes, which is contrary to the requirements of the FLSA.  Kasten spoke with his shift supervisor, a human resources employee, his lead operator, and the human resources manager and operations manager about his concerns that the location of the time clock was illegal.  Kasten’s employment was terminated in December 2006, and he alleged that his termination was retaliation for his oral complaints.  His employer, Saint-Gobain Performance Plastics Corp. defended against this claim by arguing that Kasten had made no “significant complaint” about the time clock location and it further disputed the reason for his termination. 

These facts led to the sole question presented, which was “whether an oral complaint of a violation under the `FLSA` is protected conduct under the `FLSA’s` anti-retaliation provision.”  Prior to Kasten, the United States Circuit Courts of Appeals were divided on the issue of whether oral complaints were protected in the same manner as written complaints.  The Supreme Court first looked to the language of the FLSA’s anti-retaliation provision, which protects employees who “filed any complaint” from employer retaliation.  The Supreme Court looked specifically at the phrase “filed any complaint”, and determined that this phrase does in fact include, and therefore protect, oral complaints. 

The Supreme Court looked primarily to the purpose and context of the FLSA to determine that oral complaints are protected under the anti-retaliation provision of the FLSA.  It found that to hold otherwise would undermine the basic objectives of the Act, including worker protection.  It stated:

Why would Congress want to limit the enforcement scheme’s effectiveness by inhibiting use of the Act’s complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated, and overworked workers?

The Court noted that many employees, such as factory workers and those engaged in manual labor, are often not in a position to write out a complaint and may be forced to make a complaint orally.  Further, to hold otherwise would limit the flexibility of those charged with enforcement of the FLSA.  Specifically, if protected complaints were limited to those in writing, it would prevent government agencies from relying on hotlines, interviews, and all other types of oral methods of receiving and investigating complaints. 

The Court’s decision does not mean that any employee airing frustrations to a supervisor is lodging a formal complaint such that the statement raises issues of protection from retaliation under the FLSA.  The Court acknowledged that the phrase “filed a complaint” does hold some degree of formality, although it does not require a writing.  Where a complaint has been filed, either in writing or orally, for it to be protected under the FLSA, it must give “fair notice” that the employee is lodging a complaint regarding business concerns.  The Court found:

To fall within the scope of the antiretaliation provision, a complaint 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.  This standard can be met, however, by oral complaints, as well as written ones. 

With respect to Kasten’s claim, the Supreme Court held that the lower court erred in finding that oral complaints cannot fall within the phrase of “filed any complaint.”  The case was remanded to determine whether or not Kasten’s comments to his shift supervisor, human resources employee, lead operator, and human resources manager and operations manager satisfied the requirement of “fair notice” in order for his statements to be protected under the FLSA’s anti-retaliation provision. 

The lesson here for employers is that whenever an employee makes a statement that could be construed as a complaint, whether it is written or oral, the employer must take pause to determine if the employer could be “filing a complaint” under the FLSA such that the statement would trigger the anti-retaliation provision of the FLSA.  The employer must analyze the statement and determine whether or not the employee is asserting his or her rights under the law.  This does not mean the employee has to quote the statutory provision being asserted, but it is certainly more than run of the mill, daily employee frustrations.  By way of illustration, in the above example, Jack’s statement that he believes he should be receiving overtime pay would likely be held to be a complaint protected under the FLSA.  Although he is not invoking a specific statutory section, he is generally asserting his rights under the overtime pay provisions of the FLSA.  Jack’s oral statement to Sue is now a protected “complaint” and Sue would need to be careful of the risk of a retaliation claim if she were to decide to terminate Jack’s employment.  While the line is not always clear and is highly fact-based, taking the time to analyze and, if necessary, seek legal counsel may help an employer head off a needless retaliation lawsuit. 

Katie Kiernan  is an attorney in the  Litigation Department at the law firm of McLane, Graf, Raulerson & Middleton, Professional Association.   Katie can be reached at 603-628-1490 or at katie.kiernan@mclane.com. The McLane Law Firm is the largest full-service law firm in the state of New Hampshire, with offices in Concord, Manchester and Portsmouth, as well as Woburn, Massachusetts.