Reprinted from the December 10, 2007, issue of PERSONNEL LEGAL ALERT, a widely read employment law newsletter that keeps HR executives up-to-date on the latest court cases, legal trends, government regulations, and federal legislation that affect the policies you write and procedures you administer. Click here to view a sample issue, get more information, or sign up for a risk-free subscription.

Does An Informal Complaint Trigger
The FLSA’s Anti-Retaliation Provision?

There is no question that employers are prohibited from retaliating against employees who file complaints in good faith regarding their belief that their employment rights have been violated. There is no question that employees who file formal Fair Labor Standards Act (FLSA) complaints with the Department of Labor (DOL) are covered. There is some question as to whether informal complaints are covered. Despite some uncertainty, preventing backlash against any employees who act in good faith is the best course of action.

INFORMAL INTERNAL COMPLAINTS

An employee who complains to his/her employer, rather than a government agency, will expect to be protected from retaliation. The federal circuit courts are split over whether informal complaints are covered. The minority view shared by the 2nd and 4th Circuits is that the concept of “filing” a complaint implies some type of official procedure. The majority of circuit courts (1st, 3rd, 6th, 7th, 8th, 9th, 10th, and 11th), however, agree that informal complaints are covered.

Don’t take any chances: Just as you should have an anti-harassment policy that prohibits both illegal harassment and unacceptable, albeit legal, behavior that is harassing, your anti-retaliation policy should cover both formal complaints and informal complaints within your organization. Everyone from employees to their supervisors to upper management must be aware of this.

INFORMAL EXTERNAL COMPLAINTS

Since the DOL administers the FLSA, it is appropriate for employees to file wage complaints there. Now, what about an employee who complains about his employer’s pay practices to the National Labor Relations Board (NLRB) during an investigation of unfair labor practice charges? District court: Although the NLRB’s investigation did not arise under the FLSA, by providing information to the federal agency, the employee still made an FLSA complaint to the government. Thus, the employee’s retaliation claim goes on. (Hernandez v. City Wide Insulation of Madison, Inc., E.D.WI, No. 05-C-303, 2007)

This court considered the fact that the majority view protects more than just employees who have participated in a formal FLSA proceeding. The circuit court that covers this district court, the 7th Circuit, has not directly addressed the issue, but has interpreted the FLSA retaliation ban broadly.

Don’t take any chances: Managers must be warned about taking an adverse action against an employee who they learn has filed a wage complaint — regardless of to whom the employee has complained.

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