Do oral complaints carry the same weight as written complaints in retaliation cases?

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in Employment Law,Human Resources

Q. We have an employee who has made several complaints about his wages while talking to his manager during informal meetings. Are these oral complaints sufficient to trigger the Fair Labor Standards Act (FLSA) anti-retaliation provision?

A. It depends on the circumstances of the complaint. These facts are similar to a recent U.S. Supreme Court case, Kasten v. Saint-Gobain Performance Plastics Corp. (No. 09-834, 2011).

(See “Supreme Court: Oral complaints have retaliation protection, too.”)

The FLSA provides that an employer may not “discharge or in any manner discriminate against any employee because such employee has filed any complaint” alleging a violation of the FLSA.

In Kasten, an employee orally complained to the employer about the location of employee time clocks that he believed resulted in employees not being paid properly for their work time. The employer argued that only written complaints are protected from retaliation.

However, the Supreme Court disagreed and held that the FLSA’s ban on retaliating against employees who “file” an FLSA complaint against an employer covers oral complaints in addition to written ones.

While the Kasten decision was a victory for em­ployees, the Supreme Court recognized that the FLSA requires fair notice of a complaint.

Specifically, the 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 statute and a call for their protection.

It is also important for employers to note that the Supreme Court did not decide whether the FLSA covers oral complaints that are made to a private employer (instead of to the government).

To minimize liability, employers should train managers how to handle and respond to employee wage-and-hour complaints. Tell them to report all such conversations to HR.

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