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The Door Is Opened Wider for Employees to Sue Under the FLSA

In another blow to employers, the United States Supreme Court recently held that a verbal complaint to an employer is equal to a written complaint if it results in retaliatory employment conduct by the employer. Under the Fair Labor Standards Act ("FLSA"), an employer can be held liable if it retaliates against an employee who complains to the employer about unlawful workplace practices. This decision has widespread implications for employers. First, it potentially creates an easier pathway for more employment related litigation. Employees no longer have to document their complaints and can easily claim they verbally complained to their employer and overcome any defense that a complaint was not asserted. Second, mere grumbling in the background about improper employment practices could be enough to satisfy the "complaint" requirement. Employers need be on high alert to listen for formal or informal complaints and must avoid taking adverse action in retaliation for hearing grumblings. Third, the burden of documenting complaints is now placed squarely on the employer, not the employee. Instead of placing a complaint in the employee's file and documenting any action taken on the complaint, an employer must now be sensitive to the fact that hearing a verbal complaint should now be documented by the employer. Ultimately, the bright line test for whether a complaint was made -- a written complaint - is now a battle over credibility. Did the employee actually complaint about the employer's practices? It now comes down to the employee's word against the employer's word. Establishing procedures to document complaints is a key to minimize the credibility battle.