FLSA Anti-Retaliation Provisions Cover Employees' Verbal Complaints

Are employees protected under the Fair Labor Standards Act (FLSA) when they make a verbal complaint? According to a recent U.S. Supreme Court case, the answer is yes. In Kasten v. Saint-Gobain Performance Plastics Corp., Kasten claimed that he was fired after making repeated verbal complaints to his supervisors and to an HR representative that the location of employee time clocks prevented workers from receiving credit for the time spent putting on and removing their work clothes.

 

The sole question the Court considered was whether, for purposes of the FLSA's anti-retaliation provisions, making a verbal complaint is the same as "filing" a complaint. The Court held that in this context, filing a complaint can include making a verbal complaint — as long as the complaint gives fair notice to the employer that the employer could be subject to a future claim of retaliation. In other words, to be a protected activity, an employee's verbal complaint must be "sufficiently clear and detailed" that a reasonable employer would understand it to be a complaint under the FLSA. Kasten also implied that making internal complaints — as well as external complaints — are protected employee activity.

 

Many employers already consider employees' verbal complaints to be protected activity. But in light of Kasten, it's more important than ever that employers treat any employee complaint — verbal or written, and internal or external — as potentially protected, particularly before considering any adverse action against that employee. And employers should continue to ensure that all employment decisions are based on legitimate, non-retaliatory grounds.

 

Supervisors and managers should be instructed to document every verbal employee complaint of any nature. After Kasten, wise employers may also consider implementing a process to review and respond to internal employee complaints relating to FLSA issues. The process may include specifying what information an employee must provide in order to "file" a complaint. A process such as this provides clarity to the benefit of both employers and employees.