- Blog post
Must a complaint be written down for the complainer to be protected?
Here’s a scenario based on a real-life employment law case. How do you think the court ruled?
“To answer your question, no, Jeff Early never raised any complaints about overtime pay, not as such,” supervisor Rena MacLeish told HR manager Pat Serace.
“What do you mean, not as such?” Pat asked.
“Well, Jeff did occasionally grumble about payroll not getting people’s OT right in their paychecks,” Rena said. “And I guess I heard him say one time that it was illegal for us to keep getting it wrong and underpaying people.”
“But this was always in the nature of a ‘concern’ – that’s what he called it – and not a formal complaint,” Rena went on. “He never gave me anything written down. If he had, I would have brought it to the plant manager or you, for sure.”
“That’s good to know,” Pat said. “But we’ve got a problem. After we fired Jeff for regularly failing to punch in and out, he lawyered up. He’s claiming we fired him in retaliation for his complaints about overtime pay. He’s filed suit for violations of the Fair Labor Standards Act.”
“Ridiculous,” Rena sniffed. “We’d fire anybody who flat-out refused to punch in. Maybe Jeff saw what he was doing as a way to protest our time-keeping, but that’s no way to go about it.”
“Anyway, as I said, Jeff never actually made any formal employee complaint,” Rena said. “So I don’t see how he can claim we retaliated for complaints he never made.”
“I hope the judge will see things that way,” Pat said.
Did the company manage to get Jeff’s retaliation lawsuit thrown out?
No. In a case that went all the way to the U.S. Supreme Court, the federal courts ruled that Jeff didn’t have to make a written complaint in order to be protected from retaliation.
For both wage/hour and employment discrimination issues, an oral complaint adds up to protected activity if it’s clear enough to put the employer on notice that the complainer is asserting his or her legal rights. And Jeff did tell supervisor Rena that he thought what the company was doing was illegal.
Rena was operating under a dangerous misapprehension – that a supervisor can wait until employees put their issues in writing before paying attention. Many organizations have complaints policies that make the front-line supervisor the first contact point for employees who believe they’re being discriminated against, harassed or underpaid. Thus, supervisors need to keep their ears open for signs that an employee is making such a complaint, or wants to.