Under the FLSA "Oral" Complaints Count

All employers know that employees grouse or complain about something in their job and/or the company on a daily basis. Sometimes we feel those complaints go overboard and we lable the employee as a “complainer” and end up helping the employee find work more suited to them, if you get my drift. Sometimes, actually often, you should listen to those complaints, especially if it has to deal with an employee not being paid for some aspect of their job. Why do I need to do this you ask? It all has to do with a recent, March 2011, U.S. Supreme Court decision on the rights employees have under the FLSA (Fair Labor Standards Act).
The case of Kasten v. Saint-Gobain Performance Plastics Corp. has provided a new standard that all companies have to comply with. Mr. Kasten complained, apparently alot. He would make it clear that he thought the time clocks were too far from the worksite. Employees would have to put on their protective equipment before punching in and take it off after punching out. (This is covered by the donning and doffing rules in the FLSA and I wrote about these in Small Business Friday: What the heck is “doffing?”) Now this case is not about “donning and doffing”, it is about how Mr. Kasten complained about that fact that he thought he should  be compensated for that time. You see he never filed a complaint in writing, it was always an oral complaint. But it was repeated and he warned specifically that he thought this was a violation of work rules.
Well the company got tired of listening so they terminated him. He then filed a lawsuit claiming he was fired in retaliation for making oral complaints and that violated the FLSA. Indeed the law says it is unlawful “… to discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted… any proceeding.” The company claimed that he had never “filed” a complaint and the lower courts agreed with the company. They said that unwritten oral complaints are not “filed” and are thus not protected.
As you might guess from the fact that I am writing this the U.S. Supreme Court reversed the lower court and ruled that any complaint oral or written qualifies as “filed.” It does have to be a legitimate complaint and there has to be some formality to it to ensure the company is getting fair notice. In this case Mr. Karsten made repeated complaints to supervisors, managers and HR so he met the standard of having a legitimate complaint.
To me these are the lessons that should be learned.

  • This case points out the importance of supervisors documenting things they are hearing. I think summary reports at the end of a work shift should note complaints they heard and dealt with and those reports should be reviewed by someone, preferably HR. They should be reviewed for “patterns” of complaints.
  • Before terminating someone for being a “complainer” investigate what they are complaining about. You may very well find they have a legitimate “beef” and something needs to be corrected.
  • Consider setting up a process for an employee to come and make their complaint known to someone other than the supervisor. An “open door” policy often forestalls employees seeking union representation. It also improves morale.
  • Remember that firing someone today for what appears to be retaliaiton will get you in as much, if not more, trouble than what the original complaint may have been about.

Thanks to my friends at Smith, Gambrell & Russell, LLP for the inspiration on this post.

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