Employment Law Commentary -- Volume 25, Issue 5 -- May 2013: When Is a Complaint a Complaint? After Kasten and beyond

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Employees, like a lot of people, complain. Work may be too hard, it may be too easy, and for many people work may never be quite right. As they say, the grass is always greener on the other side. But when does a passing negative comment, a momentary grumble, or perhaps a “sotto voce” sarcastic joke become a “complaint” that can form the basis of an anti-retaliation claim under the Fair Labor Standards Act (“FLSA”)? With the deluge of wage and hour class actions continuing unabated, the issue should be of more than just academic concern for employers.

In March 2011, in Kasten v. Saint-Gobain Performance Plastics Corporation, the U.S. Supreme Court confirmed the broadening of the term “complaint” under the FLSA to encompass oral complaints by employees, thus setting a potentially very low bar for employee anti-retaliation claims.1 While the Court answered how a complaint could be made, the Court did not answer to whom the employee must make the complaint. Over two years later, courts continue to delve into detailed factual analyses to determine what makes a statement a “complaint”. As a result, employers continue to struggle with this question in managing their workforce, training their managers and assessing their responses to statements by employees that may or may not be sufficient to be a complaint for purposes of the FLSA.

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