Are oral complaints protected under the FLSA’s antiretaliation provisions?
Issue:

An employee in your organization has been complaining about the location of your company’s time clock. He told his shift supervisor that the clock’s location was illegal, informed his lead operator that he was thinking about suing over the clock’s placement, and told an HR employee and an operations manager that, if the time clock location were challenged in court, the company would lose. In short, he made repeated verbal efforts to inform the company of his concerns, in accordance with its internal grievance resolution procedure. When the employee repeatedly refused to clock in and out despite repeated warnings, he was discharged. Claiming he was fired because of his oral complaints in violation of the Fair Labor Standard Act’s antiretaliation provisions, the employee filed a lawsuit against your company. Will he be successful?
Answer:    

Maybe. In a case with similar facts, the US Supreme Court ruled that oral complaints are protected under the FLSA’s antiretaliation provisions. The Court found that although the FLSA requires fair notice, this requirement does not necessarily mean that notice must be in writing.

The Court set forth the minimum requirements for an employee complaint to satisfy this fairness element: 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 FLSA and a call for their protection. This standard could be met by both oral and written complaints, the Court concluded, leaving it to the lower court to decide whether the employee in the above example will be able to satisfy this requirement.

Employer ramifications. According to Attorney Stacey Smiricky, partner at the Chicago office of Wildman, Harrold, Allen & Dixon LLP, the ruling could impose additional burdens on employers to investigate every employee gripe, and cautious employers will do so. While the majority emphasized that an employee’s nonwritten complaint must be sufficiently clear and detailed for a reasonable employer to understand it as an assertion of rights, the very nature of such oral complaints invites fact disputes — exactly what do the employer and employee each say was the content and context of the employee’s oral complaint about the unpaid time? Such fact disputes may decrease employers’ ability to resolve cases on summary judgment, Smiricky said.

Smiricky advises employers to train their supervisors and managers to be aware of these types of nonwritten complaints, report them immediately to the person responsible for investigating those complaints, and thoroughly document both the oral complaint and the company’s investigation of it.

Source: Kasten v Saint-Gobain Performance Plastics (SCt 2011) 161 LC ¶35,886.
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