Did You Know? Unwritten Complaints Trigger Retaliation Protection

Posted 05-11-2011

In yet another expansion of its anti-retaliation decisions, the United States Supreme Court decided recently that an employee who made oral complaints to his employer about violations of federal wage and hour laws was protected from employer retaliation.

Kevin Kasten worked for Saint-Gobain Performance Plastics for more than three years. During 2006, he repeatedly told his supervisor, the operations manager, and Human Resources that the company was violating the law by locating its time clocks where employees could not get credit for the time they spent putting on and taking off their protective gear, a violation of the Fair Labor Standards Act (FLSA). After he was fired in December, 2006, Mr. Kasten sued his ex-employer, claiming that he had been fired because of his complaints to the company. The employer defended its actions by asserting that Mr. Kasten was fired because he refused to use the time clocks, and that Mr. Kasten couldn’t claim retaliation anyway, because the FLSA protects only employees who “file” a complaint, which must be done in writing.

After consulting several dictionaries and looking at how state laws, federal regulations, and court opinions have used the word “file”, the Supreme Court found that “file” doesn’t necessarily require a written complaint. Examining the history of wage and hour laws, the Court also found that requiring employees to put all FLSA complaints in writing would thwart the statute’s protective purpose by discouraging complaints from employees who are less educated, illiterate, or simply overworked. But, the Court also stated that the employee’s complaint had to 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.”

Six Justices voted in favor of Mr. Kasten, who will now have the opportunity to prove his allegations at trial. (Justice Kagen did not participate.) In their dissent, Justices Scalia and Thomas stated their belief that only employees who filed complaints with a court or administrative agency were protected from retaliation, not workers who made only internal complaints.

Kasten v. Saint-Gobain Performance Plastics Corporation, 563 U.S. ____(2011)

What this means to you:

This latest Supreme Court opinion underscores the critical importance of policies and training for managers on the proper handling of complaints of any sort, written, oral, and even anonymous. This includes understanding and communicating the employer’s policy prohibiting retaliation for good-faith complaints, as well as the employer’s procedures for prompt documentation and thorough, impartial investigation of employee complaints.

To protect themselves from potential retaliation claims, it is also essential that managers and supervisors consistently document the legitimate business reasons for personnel actions. They should be trained on promptly documenting and communicating employee performance issues, as well as consistently providing detailed, accurate employee performance evaluations.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:37+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.