Supreme Court says verbal wage complaints protected

Employers can’t fire workers for verbally complaining of wage-and-hour violations, ruled the U.S. Supreme Court yesterday. An employee repeatedly told management and HR representatives that the company was violating the law by placing the time clock so it wasn’t accessible until workers put on the protective gear required for a clean-room environment and then walked toward their work stations. He believed workers should have been paid for their time donning and doffing the protective gear. The company eventually fired him, and he claimed it was in retaliation for raising complaints under the federal Fair Labor Standards Act (FLSA).

The Court ruled that the FLSA doesn’t require a complaint to be in writing in order to be protected. Instead, a complaint under the FLSA is “filed” when an employer is reasonably put on notice that the employee is asserting a right under the FLSA (Kasten v. Saint-Gobain Performance Plastics Corp., US, March 22, 2011).

Tips: Unfortunately, the Court didn’t take a position as to whether an employee’s FLSA complaint must be to a government agency, as opposed to the employer, in order to be protected. Unless you want to be the next test case, we recommend that you consider an employee’s oral complaint to a member of management or HR on an FLSA wage-and-hour issue to be protected. Examples include complaints that an individual wasn’t paid overtime properly or wasn’t paid for time worked.

Keep in mind that most other employment laws definitely don’t require a worker to complain to a government agency in order to be protected from retaliation. For example, if a worker reports sexual harassment to a manager, Title VII of the Civil Rights Act provides protection. Similarly, if two or more employees complain to a supervisor that they don’t like the new healthy snacks in the vending machines, the National Labor Relations Act provides protection for group complaints about wages, hours or working conditions. As an employer, this means it is even more important to ensure any disciplinary or termination decisions are supported by job-related reasons, especially if a worker has a history of complaints on protected topics. See our Legal Guides, “Handling Workplace Protests and Complaints” (1238) and “Retaliation Claims: How to Avoid Them” (1308).