Wednesday, July 15, 2009, 10:18 AM

A Verbal Complaint Isn't Worth the Paper It Isn't Written On

Calling to mind the old Samuel Goldwyn quote about verbal contracts, the US Court of Appeals for the Seventh Circuit held in Kasten v. Saint-Gobain Performance Plastics Corp. (No. 08-2820)that the retaliation protections the FLSA extends to those who "file any complaint" under the statute require that the complaint be reduced to writing. Kasten brought two suits against his employer: the first, a donning-and-doffing claim, resulted in a judgment against the company, and the second alleged he was retaliated against for complaining to management about the company's policy of refusing to pay for time spent putting on and taking off safety gear. Saint-Gobain said Kasten had made no such complaints.

The court acknowledged that internal complaints are protected by the law, but said the language of the statute, which is less broad than similar protections in other employment laws, didn't reach "purely verbal" opposition. The court looked to the dictionary definition of "file" in concluding, "One cannot 'file' an oral complaint; there is no document, such as a paper or record, to deliver to someone who can put it in its proper place." The court rejected arguments by the plaintiff and the Department of Labor that "file" and "submit" are synonymous as "overbroad." Now what happens if the complaint is emailed, texted or tweeted? The devil's in the details.

This places the Seventh Circuit, along with the Second and Fourth Circuits (Lambert v. Genesee Hosp., 10 F.3d 46 (1993) and Ball v. Memphis Bar-B-Q Co., 228 F.3d 360 (2000)), at odds with somewhat vague rulings by three other federal appellate courts in which the employees apparently made speaking objections which weren't in documentary form: Brennan v. Maxey's Yamaha, Inc., 513 F.2d 179 (8th Cir. 1975)(employee refused to endorse a check deemed to be an attempted circumvention of the FLSA); EEOC v. White & Sons Enterprises, 881 F.2d 1006 (11th Cir. 1989)(Equal Pay Act opposition activity); EEOC v. Romeo Community Schools, 976 F.2d 985 (6th Cir. 1992)(same). Consequently, there are 11 states in which written complaints are needed, 14 in which documentation seems unnecessary, the the other 25 which have no clear rule. With a likelihood that Supreme Court review may be sought to resolve the conflict, retaliating against a verbal complainer is still a risky venture.

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