Oral Complaint over time-keeping is

Protected Activity under FLSA:

U.S. Supreme Court

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“Filed any complaint” can include

spoken concerns about clock

             The Seventh Circuit had interpreted the federal wage and hour laws to afford protection from retaliation for only making written grievances, but this week the U.S. Supreme Court reversed the appeals court (6-2).   Kasten v. Saint-Gobain Performance Plastics Corp., __U.S.__, No. 09-834 (March 22, 2011).  If an employee of yours voices concerns to his supervisor about how work time is recorded or paid, you should strongly encourage that the employee put it in writing, but if he doesn’t, and gets fired, he can claim retaliation for the complaint.

             This opinion reinforces that HR practice that supervisors handle such complaints appropriately when they surface.  And that requires regular management training.

             The anti-retaliation provision of the Fair Labor Standards Act forbids dismissal of or discrimination against an employee “has filed any complaint or instituted or caused to be instituted any proceeding under or related to” the FLSA.  Kastern sued under this provision, alleging that the company fired him for complaining, orally, about time-keeping practices.  Saint-Gobain made the threshold argument that the law applies only to complaints that can be “filed”, i.e., written ones.  The Seventh Circuit bought this defense, but the Supreme Court concluded that oral statements were indeed contemplated, based on legislative history and language construction.  Justice Breyer noted that “any complaint” suggested a broad interpretation, and that various laws and regulations elsewhere in the body of federal and state law refer to the “filing” of oral statements.

             Left for another day was the related issue of whether an oral or written statement filed internally, but not with a government agency or court, was contemplated by the anti-retaliation provision.

3/25/2011