The federal Fair Labor Standards Act forbids an employer from firing a worker because he filed a complaint accusing the employer of violating the law. It does not specify that the employee's complaint must be in writing, so a key question is whether a verbal complaint is protected.
That question reached the U.S. Supreme Court in a case involving Kevin Kasten. Following his employer's handbook, Kasten told his supervisor the location of the company's time clocks might be illegal because it prevented workers from getting credit for the time they spent putting on and removing protective gear that employers must pay for under the FLSA.
After getting no response from his supervisor, Kasten complained to human resources and said he was contemplating a lawsuit. He was later fired, and he claimed the termination was retaliation for raising the time-clock issue. The company said it fired him for repeatedly failing to punch the clock despite warnings.
Kasten sued for illegal retaliation. The trial and appellate courts accepted his version of events but ruled for the employer, interpreting the FLSA to require written complaints to the employer. Those decisions were appealed to the U.S. Supreme Court.
The Supreme Court ruled in Kasten's favor. Writing for the majority, Justice Breyer explained that interpreting the law to cover only written complaints would undermine the statute's objectives and would limit enforcement for workers who cannot easily reduce complaints to writing, such as less-educated or overworked employees.
Breyer also noted that the Department of Labor has long treated the statute as covering oral complaints and has operated hotlines for employee complaints. Employers can consult resources such as OSHA Guidance for Healthcare Workers and Workplace Violence to better understand workplace safety and reporting practices.
He further observed that other laws, regulations and court decisions have used the term "filed" for oral complaints, and that the statute's phrase "filed any complaint" should be read broadly to include oral complaints as well as written ones.
Justices Scalia and Thomas dissented. Scalia argued that other uses of "complaint" in the FLSA refer to official filings with government agencies and that a private verbal complaint to an employer should not trigger the statute's anti-retaliation protection.
Despite the dissent, the decision means employers should be aware that employees who make oral complaints to their employers are protected from retaliation under the FLSA. Businesses should create and implement policies stating that employees who make such complaints will not suffer retaliation, and review related guidance such as Recent Developments in Workers' Compensation and Workplace Safety.
Because Employment Practices Liability insurance commonly covers retaliation claims, insurers will expect employers to take steps to reduce the risk of such claims. If you are unsure how to update policies or respond to complaints, consider taking time to talk to an agent about employer coverage and best practices.
Frequently Asked Questions
Are verbal complaints to an employer protected under the FLSA?
Yes; the Supreme Court held that the statute's anti-retaliation provision covers oral complaints to an employer as well as written complaints.
What should employers do when an employee raises an oral complaint?
Employers should document the complaint, investigate promptly and ensure the employee is not retaliated against while the issue is reviewed.
Do these protections require filing a complaint with a government agency?
No; protection applies to employees who complain to their employer about possible FLSA violations, though filing with a government agency may also be an option.