Imagine an employee walks into your HR office and complains that the company has misclassified her as exempt and that she is owed overtime. According to the 7th Circuit in Kasten v. Saint-Gobain Plastics (7th Cir. 06/29/09) [PDF], you can actually fire that employee without fear of retaliation as long as the the employee only makes the complaint orally, and does not put it in writing.
The FLSA’s anti-retaliation provision provides that an employer cannot “discharge or in any other manner discriminate against any employee because such employee has filed any complaint….” The court held that unwritten verbal complaints are not protected activity: “[T]he natural understanding of the phrase ‘file any complaint’ requires the submission of some writing to an employer….”
Employers should not get overly excited about this decision. The 7th Circuit’s holding in Kasten appears to be the minority view. Indeed, the 6th Circuit (which covers Ohio) in EEOC v. Romeo Community Schools, found that an employee’s oral complaints to a supervisor were protected. Employers act at their own peril if they fire employees who make oral wage and hour internal complaints. In other words, the next time an employee walks into your HR office and voices that complaint, don’t fire her. Instead, listen. She might even be right.
Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.
For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.