Most of the commentary on the Supreme Court’s recent decision in Kasten v. Saint-Gobain Performance Plastics, 563 U.S. ___ (2011), available here, has focused on the fact that the Court apparently took a pro-employee, anti-business position by deciding that a relatively informal complaint about the location of a time clock could be considered a “filed complaint” for purposes of the anti-retaliation provisions of the Fair Labor Standards Act. While interesting, the question for most employers is what the decision means for their compliance programs. How can prudent human resources departments ensure that employees do not suffer retaliatory actions when even oral complaints that never go past a first line foreman can subject the employer to significant risk? A subsequent disciplinary action is unlikely to receive the same level of review for retaliatory motivation if the reviewer has no record of the complaint.
Compounding the problem for employers is the fact that employees at all levels complain about many things all the time—in most cases without expecting that anything is really wrong or that anything will be done. In many, perhaps most, workplaces, employees would not be all that pleased if every casual expression of theirs resulted in management approaching them with requests for documentation and discussions of improvement, formal assurances of non-retaliation and documentation in the “be careful of disciplining this individual since there is a history of complaints” file. That said, here are some thoughts, which might work in some workplaces, and perhaps not in others.
1. Education. Make sure management and rank and file workers are informed of the employer’s policies, including the way it handles complaints relating to compliance with laws.
2. Process. Make the process of bringing issues forward simple, and provide a way for those managers who hear of an oral complaint to bring it to the attention of compliance personnel. Then, there should be a process by which it can be confirmed that the oral statement was or was not intended to be a complaint. If it was intended to be a complaint, it should be handled the same as any written complaint. If it is not intended to be a complaint, that fact should be documented, since it may help provide a defense to later claims of retaliation. Nonetheless, the complaint should be assessed. If it has validity, the opportunity for corrective action should not be ignored.
3. Records. As noted, where there is an oral complaint, it should be documented and the documentation should be retained. The records should be made a part of any review, in the same way as records of written complaints are used. It is no longer prudent in this day and age to seek to hide from future decision-makers the fact of past issues and then try to rely on a defense that there could have been no retaliation because the decision-maker was ignorant of the underlying complaint. If there is discipline or a layoff based upon performance, this is an opportunity to use the employer’s dispute resolution procedures to identify potential retaliation claims and even to defuse them. Employees who have past complaints in their history may well not raise them at the time of the discipline for unrelated activity and therefore give the employer a better position in subsequent retaliation litigation.
There is no denying that the Supreme Court made life more difficult for U.S. employers. An effective compliance program will go a long way towards giving the most compliant and most careful workplaces an advantage.