As previously reported in Squire Sanders’ Sixth Circuit blog, the Supreme Court recently ruled that oral statements made to an employer regarding wage and hour violations are sufficient to trigger the anti-retaliation provision of the Fair Labor Standards Act (FLSA). Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (March 22, 2011). Thus, employees are not required to file a formal written complaint to constitute “filing” a complaint.
In Kasten, the plaintiff (Kasten) received three warnings within a 12-month period for failing to properly clock in. On the third warning, his supervisors told him that another violation would lead to his termination. Kasten claimed his inability to properly clock in and out was due to the location of the company’s time clocks—a location which, Kasten claimed, violated the FLSA. Kasten, however, never lodged a written complaint about the time clocks’ location with his employer or the Department of Labor; he only made oral comments to his supervisors. Kasten was later disciplined a fourth time for the same issue and subsequently fired. Kasten sued his former employer, claiming he was terminated in retaliation for having complained about the company’s FLSA violations. The Supreme Court’s decision resolves a decades-long split between the circuits as to whether an oral complaint of FLSA violations is sufficient to be the basis of a retaliation claim.
Now that oral complaints are protected nationwide, an informal conversation between an employee and a supervisor regarding wages or working hours could be the basis for a future FLSA retaliation claim. This promises to create new difficulties for employers because by their nature, many of these conversations go undocumented. So what should employers do? Employers will need to train supervisors to recognize complaints that fall under the ambit of the FLSA and implement practices for documenting such informal complaints.