Eric Markowitz | Inc.com staff

Do Employee Complaints Have to Be Written Down?

The Supreme Court hears a case on what constitutes a formal employee complaint filed under the Fair Labor Standards Act.

 

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Talk is Cheap: Justice Samuel Alito expressed skepticism that employee complaints rendered verbally should hold the same weight as written complaints.

The nine justices of the Supreme Court listened to oral arguments yesterday in Kasten v. Saint-Gobain Performance Plastics Corporation, a case that has brought the employee complaint process into the spotlight, and one that can have substantial legal implications for employers and HR managers around the country. 

Kevin Kasten worked in a factory at the Saint-Gobain Performance Plastics Corporation until 2006 when he was fired. Kasten alleges that he was fired in retaliation for verbal complaints he made about the location of a time clock, which he had argued was illegal. However, a federal district court and the Court of Appeals ruled against him, saying that the anti-retaliation provision in the Fair Labor Standards Act protects complaints only if they are written, not spoken. 

James Kaster, representing Kasten, argued the definition of filing a complaint must extend to a verbal complaint as well. "When Kevin Kasten told his employer that the location of the time clocks was illegal, he filed any complaint...under the Fair Labor Standards Act, because filing includes an oral communication."

But the justices were critical of such a broad definition of the word "file," and opened the court's floor to a debate on the legal meaning of the word. For example:

Justice Alito: Are you filing your comments right now? 

Mr. Kaster: I think I am, Your Honor. 

Justice Alito: You are? Really? 

Mr. Kaster: I am directing them to the Court. 

Justice Alito was also quick to point out the HR quagmire this type of legislation would create for employers. 

"If that's the law and the employee gets fired and the employee says, well, this was done in retaliation for my having filed an FSLA complaint three weeks ago, and the employer says what complaint? We have no record of any such complaint and the employee says, oh, yes, I said it orally to a supervisor who was passing by and my buddy Joe was there and he's going to corroborate this. So now we have a trial about whether a complaint was filed?"

Later, Kaster parried back with an assertion that the 1982 Migrant Workers Act provides a precedent to suggest that "filing" may not have to be in writing, in order to protect worker's rights who don't have the means to file a written complaint. 

"It is implausible to suggest that Congress would think that a migrant worker was leaving the field and writing up a memo and bringing it back to his supervisor in order to assert his statutory rights," Kaster argued. "Migrant workers, coal miners, factory workers -- they don't write memos. With all due respect, Your Honor, lawyers write memos."

Eric Markowitz reports on start-ups, entrepreneurs, and issues that affect small businesses. Previously, he worked at Vanity Fair. He lives in New York City. @EricMarkowitz