Q. We have an employee whom we have classified as exempt, but wants to be classified as nonexempt and earn overtime. Frankly, she’s become a pain about the whole thing. Can we just fire her?
A. Believe it or not, maybe. But I would not recommend doing so.
The Fair Labor Standards Act has an anti-retaliation provision that says an employer cannot “discharge or in any other manner discriminate against any employee because such employee has filed any complaint….”
Recently, in Kasten v. Saint-Gobain Plastics, the 7th Circuit held that this provision does not cover oral complaints, only written complaints: “[T]he natural understanding of the phrase ‘file any complaint’ requires the submission of some writing to an employer….”
Employers, however, should not get too excited about this decidedly minority viewpoint. Indeed, the 6th Circuit (which covers Ohio), in EEOC v. Romeo Community Schools, found that an employee’s oral complaints to a supervisor were protected. Moreover, state laws might similarly prohibit such retaliation.
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