ORAL COMPLAINTS SUFFICIENT TO TRIGGER

FLSA ANTI-RETALIATION PROVISIONS

By

Henry A. Arnett

Livorno and Arnett Co., LPA

1335 Dublin Road, Suite 108-B

Columbus, Ohio 43215

Telephone: 614-224-7771

The Federal minimum wage and overtime laws, commonly referred to as the Fair Labor Standards Act or FLSA, prohibit employers from taking retaliatory action against employees who file complaints under the FLSA. The law, 29 USC §215 (a)(3), states that it shall be unlawful for any person:

“to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee;”

What does it mean to say that an employer cannot discriminate against an employee who “has filed any complaint”? Is an oral complaint sufficient, or does the complaint have to be in writing?

In Kasten v. Saint-Gobain Performance Plastics Corporation, the United States Supreme Court held that an employee’s verbal complaints were sufficient so that the employee was protected under the FLSA. In its March 22, 2011, opinion, the Court held that an employee may not be subjected to retaliation even if his/her complaints were oral rather than written.

Unfortunately, the Supreme Court failed to decide another issue in the Kasten case. That issue is whether an employee is protected regardless of where the employee files a complaint. Is the anti-retaliation provision of the FLSA applicable only if the employee files a complaint with a court or the Department of Labor, or does it also apply if the employee simply files his complaint with his employer?

In Kasten, the employee had complained to management about what he thought (correctly) was an illegal overtime practice by his employer, but he had not filed a formal complaint with a court or the Department of Labor. While the employer sought to argue that a complaint, whether oral or in writing, made only to the employer was not covered by the FLSA, it failed to preserve this as an issue before the Supreme Court, so the Court did not decide this claim. However, it should be noted that the lower courts had ruled against the employer on this issue.

Kasten makes it clear that an employee does not have to file a formal, written complaint in order to be protected by the FLSA. Employers may not retaliate or discharge employees for filing any complaints, even if those complaints are oral rather than written.