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Oral Complaints to A Private Employer Can Be Sufficient to Establish Protected Status under the FLSA - But Not This Time

November 2012

By: James B. Sherman, Esq. and Phoebe A. Taurick, Esq.

On November 26, 2012, the Eighth Circuit Court of Appeals ruled in accordance with a previous Supreme Court decision that the Fair Labor Standards Act (FLSA) anti-retaliation language applies to complaints regardless of whether they are in written or oral form. In Montgomery v. Havner Law Firm, P.A., Case No. 12-1977, the plaintiff, a paralegal, claimed that the law firm for which she worked violated the FLSA by discharging her after she made an internal oral "complaint." The "complaint," however, came in the form of an inquiry by phone as to why she was clocked out 10 minutes early and the issue was immediately resolved "nicely." The district court determined that the complaint was not "sufficiently clear and detailed" to constitute a FLSA report entitling the plaintiff to protection under the Act's anti-retaliation provisions.

On appeal, the Eighth Circuit Court of Appeals affirmed the district court's decision by referencing Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. __, __, 131 S. Ct. 1325, 1335 (2011). This case - also referred to in a Wessels Sherman Client Alert article in March 2011 ( see article here ) - was the determining case that expanded the scope of the anti-retaliation provisions of the FLSA. Additionally, the Eighth Circuit clarified that while "the Kasten Court did not resolve the issue of whether a compliant made only to a private employer and not to the government is sufficient," it assumed without deciding that a complaint to a private employer is sufficient. However, even though oral complaints can be protected from employer retaliation, they must be "sufficiently clear and detailed" to apprise a reasonable employer that the employee is alleging a violation of FLSA. The 8 th Circuit concluded that no reasonable jury could find that the plaintiff's complaint met this standard.

This serves as a reminder that employers should make clear their internal grievance procedures and train the appropriate personnel on these issues and proper disciplinary actions.