High court empowers spoken employee complaints
Q. Sue, the HR director for Alpha Corp., is 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 U.S. Supreme Court recently addressed this issue in Kasten v. Saint-Gobain Performance Plastics Corp. 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 Fair Labor Standards Act.Kasten spoke with his shift supervisor, a human resources employee, his lead operator and the human resources manager and operations manager about his concerns. Kasten's employment was terminated in December 2006, and he alleged that his termination was retaliation for his oral complaints.Saint-Gobain responded to 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.Prior to Kasten, the U.S. 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 court found that to hold otherwise would undermine the basic objectives of the act, including worker protection.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. When 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.With respect to Kasten's claim, 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.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 act. 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, an attorney in the Litigation Department at the law firm of McLane, Graf, Raulerson & Middleton, can be reached at 603-628-1490 or at email@example.com.