In 2011, the Supreme Court held, in regard to Kasten v. Saint-Gobain Performance Plastics, that under the Fair Labor Standards Act (FLSA) workers are shielded from retaliation for both oral and written complaints. The court stated that any complaint which is sufficiently clear and detailed for a reasonable employer to understand may be deemed as an assertion of a worker’s statutory rights to protection from retaliation.
The general interpretation of the ruling assumed that a complaint would have to be in writing, filed with a government agency for an employee to invoke the FLSA’s anti-retaliation prohibitions. A few dissenters maintained that the language of the FLSA’s anti-retaliation provision does not stipulate that requirement, and a verbal complaint formally made to a supervisor qualifies for protection. Finally, we have clarity in the matter.
Last month, the Second Circuit Court of Appeals expanded these protections in Greathouse v. JHS Security Inc. Going into the details, the employee was not paid for several months and decided to verbally complain about the matter. The supervisor’s response seems to have been reckless as well as intimidating when, allegedly, Mr. Greathouse was told that he would be paid when the supervisor feels like doing it, and then pointed a gun at him. The employee construed the act to mean that he was fired. His lawsuit charged unlawful discharge and violation of his rights to protection under the FLSA. The court agreed with Mr. Greathouse, and clearly stated in its findings that a verbal complaint, made with “some formality” to a supervisor, is shielded from retaliation under FSLA.
The ruling was clear that the process of issuing the complaint matters. FSLA does not offer protection for general unhappiness and grumbling to co-workers, only to situations in which a worker directly addresses an issue to a person in authority. The complaint must be specific enough for a “reasonable person” to understand the nature of the complaint.
In every organization, responsibility for compliance with this law starts with the line managers and supervisors. Under this new guidance, employers in New York should provide clear guidelines for supervisors and managers on ways to deal with an employee who issues a complaint, either orally or in written form.
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