On March 22, 2011, the United States Supreme Court issued its decision in Kasten v. Saint-Gobain Performance Plastics Corp. The Court held, in a 6-2 decision, that the anti-retaliation provisions of the Fair Labor Standards Act (FLSA) protect oral, as well as written, complaints.
In a related lawsuit, Saint-Gobain had been held liable by a federal court for locating time clocks in a place that prevented workers from receiving credit for time spent donning and doffing their gear. Kasten filed an anti-retaliation suit against Saint-Gobain, alleging that Saint-Gobain terminated him for orally complaining about the location of the time clocks.
The FLSA provides minimum wage, maximum hour, and overtime pay rules. It also forbids employers from discharging "any employee because such employee has filed any complaint alleging a violation of the statute. The text of the FLSA was insufficient for the Court to interpret whether the term "filed" included oral complaints. Thus, the Court considered other factors, including: (1) a narrow interpretation would undermine the FLSA's basic objective - prohibiting detrimental labor conditions; (2) the FLSA's requirement that an employer receive fair notice of a complaint can be met by oral and written complaints; (3) a broad reading of "filed" would be consistent with the interpretation of the National Labor Relations Act's anti-retaliation provision; and (4) the Secretary of Labor and EEOC have both concluded that "filed" includes both oral and written complaints.
FLSA lawsuits in California are not as common as those brought under California's wage laws, and California's Labor Code has its own anti-retaliation provision. Nevertheless, the FLSA applies to California employers. Thus, California employees can now rely on Kasten to protect themselves from retaliation for oral complaints about FLSA-protected rights. Employers can draw additional lessons from Kasten, including:
-Treat all complaints seriously, regardless of the manner in which they are made. Verbal complaints, emails, text messages - all must receive a response.
-An employee grumbling in the background on a daily basis might be engaging in protected activity, but his manager may consider the complaints misconduct. Train managers on how to recognize, and respond to, complaints.
-If an employee complains orally, have the employee put the complaint in writing. This prevents employees from subsequently claiming that their complaint was not fully investigated.
-Institute an "open door" policy, as well as an internal grievance system. This funnels employee complaints through established channels and reduces the chances of failing to respond.
