Retaliation Can be Alleged Even Based on Oral Complaints by an Employee

It is widely accepted that for employees to have a right to sue for retaliation, they must put their complaints or concerns in writing. That is, if an employee feels that an employer is doing something wrong and makes a complaint about it, in order to later say that the employee was retaliated against, the employee must have made a written complaint.

Many employers think that if a complaint made by an employee isn’t in a document, email, or employee file, the employee cannot complain if he or she later feels retaliated against.

Oral Complaints Count

But that’s not actually the law. For many years now, pursuant to a United States Supreme Court case, the law does recognize oral complaints of wrongdoing or complaints alleging retaliation that are made verbally as sufficient notice to an employer.

And once the employer has notice that an employee is making a complaint, the employer cannot punish the worker for concerns over facing a retaliation claim.

The law says that any oral complaint and request to be protected from retaliation must be detailed and specific enough to be understood by the employer. And yes, the same problems arise with oral complaints that arise out of any lawsuit that involves oral communication—who said exactly what, when, and to whom.

This can make retaliation based on oral complaints difficult for employees to prove, and create a lot of proof problems for the employee and defense problems for the employer.

But assuming that the court does believe that an oral complaint was made, and that it was sufficient in detail to be understood, the fact that the initial complaint was never put in writing doesn’t stop an employee from saying that he or she was retaliated against for making that complaint.

The Logic Behind Allowing Oral Complaints

The Supreme Court in making its decision noted that the law protected employees who “filed any complaint,” a term that doesn’t specifically say the complaint must be in writing. Additionally, the Court looked to the broad protections that retaliation laws provide to employees to justify allowing oral complaints.

Handling Oral Complaints

The law means that your business needs to have a process to make it easier for employees to make written complaints. This is to avoid an aggrieved employee alleging he or she said something to someone at your company that was actually never said.

Your company should have a designated agent to handle complaints of harassment, unfair pay, whistleblowing or retaliation, and employees should know who that person is.

Officers and management who hear employees make comments to them that could sound like a complaint, should be trained to document and lodge the complaint somewhere, for future reference, should the employee use the comment as a basis to allege retaliation later on.

Call the West Palm Beach commercial litigation lawyers at Pike & Lustig today to make sure your company has policies and procedures that will help it in any dispute involving employees.

Source:

casetext.com/analysis/supreme-court-rules-the-flsa-prohibits-retaliation-against-employees-who-make-oral-complaints