JDSupra (03/21/2012)

The Fair Labor Standards Act regulates, among other things, the payment of overtime. It includes an “antiretaliation” provision that prohibits an employer from retaliating against an employee “because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter.” In 2011, the U.S. Supreme Court held in Kasten v. Saint-Gobain Performance Plastics Corp. that an oral complaint could fall within the purview of FLSA’s antiretaliation provision, though it declined to address the issue of whether the oral complaint had to be made to a government agency or whether an internal, intracompany complaint would be covered under the antiretaliation provision.

The Fourth Circuit Court of Appeals recently joined the majority of other circuits by holding, in the case of Minor v. Bostwick Laboratories, that an internal complaint can be protected under the FLSA’s antiretaliation provision. The Fourth Circuit’s opinion emphasizes the importance for employers to be on the lookout and “keep their ears peeled” for internal complaints. Given the potential consequences of failing to identify or otherwise mishandling such complaints, employers should review their internal grievance policies—including checking for antiretaliation language—and update them as needed. Once a complaint has been processed through a company’s grievance policy, it is of paramount importance that it be directed to and administered by appropriate members of company management.