Employees who Make Oral Complaints Labor Law Violations May Be Protected from Retaliation

On March 22, 2011, the United States Supreme Court published an important opinion on retaliation law, holding that oral as well as written complaints about wage and labor law violations are protected activities as far as retaliatory discipline or firing go. In Kasten v. Saint-Gobain Performance Plastics Corp. the plaintiff complained that the location of the time clock prevented workers from receiving credit for putting on and taking off their work clothes. Specifically, plaintiff raised this concern with his shift supervisor and he also discussed the issue with one of the human resources managers. Naturally, the employer denied that that was the reason for plaintiff termination and argued that he was fired for not clocking in and out when he was taking breaks.

In this favorable to employees decision, the court makes an interesting observation that “filing” a complaint within the meaning of at least the FLSA (Federal Labor Standards Act) also mean “oral filing” or complaining verbally. The defendant argued that the employer should have a fair warning of a protected activity and therefore to be protected it has to be reduced to writing. The court agreed with the fair warning part, but rejected the notion that a complaint has to be in writing in order to be a “fair warning” to the employer. The court has articulated a fair warning standard that makes a lot of sense: “to fall within the score of the anti-retaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection. This standard can be met by oral complaints as well as by written ones.”

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