The Fair Labor Standards Act (FLSA) establishes requirements regarding the compensation of employees working in the private sector and in federal, state and local government positions. To protect employees, the FLSA prohibits retaliation by employers against employees who complain that their rights have been violated.
In the past, the FLSA anti-retaliation provision has applied to cases where an employee was fired or discriminated against after filing a formal complaint with a governmental agency, resulting in the commencement of formal proceedings against the employer. Recently, the U.S. Court of Appeals for the Fourth Circuit found that the anti-retaliation protections could also apply to informal “intra-company” complaints made by an employee.
The case was Minor v. Bostwick Laboratories. Minor, an above-average performing employee, met with a Bostwick executive to complain that her supervisor was violating the FLSA because she was altering employee timesheets. The executive promised to investigate. About a week later, Minor was terminated.
Minor filed suit, claiming that she was terminated because she complained about an FLSA violation. Bostwick argued that Minor’s FLSA complaint did not qualify under the FLSA anti-retaliation provision because it was an oral intra-company complaint and not a formal proceeding.
The Court of Appeals disagreed and found that for a complaint to qualify under the FLSA anti-retaliation provision, it can be in oral or written form, but must have some degree of formality such that it provides reasonable notice to the employer that it is an FLSA complaint. A formal proceeding is not required. Here, the meeting between Minor and the Bostwick executive was sufficient notice of the FLSA concern and, therefore, qualifies for protection under the FLSA anti-retaliation provision.
When an employee complains that their rights are being violated, the concern should be addressed whether it is expressed orally or in writing. Employers can better prepare supervisors and managers for dealing with complaints through training, preparation and documentation.
- Train supervisors and managers to recognize when an employee may be “blowing off steam” or expressing a concern that should be handled in a more formal manner.
- Update the employee handbook to ensure that it has a specific procedure in place that an employee can follow if he or she feels that their rights are being violated.
- Document meetings with employees. If possible, the supervisor/manager and a human resources representative should be present. If further investigation is warranted, take it seriously and document all actions that are taken. When in doubt, consult with outside counsel or engage outside counsel to investigate.
Furthermore, lessen the strength of a retaliation claim by documenting employee discipline. Employees are generally not terminated for a single offense. Termination usually occurs after several incidents. Each incident should be documented. Documentation should include:
- Description of the incident
- Time of incident, location, and individuals present
- Employee statement
- Action taken
- Signatures of supervisor, human resources representative and employee