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Don’t let wage and hour complaint lead to costly retaliation claim

A retaliation claim is expensive to defend and even more expensive to lose. And now it’s easier for employees to file one in matters related to the Fair Labor Standards Act (FLSA), which covers wage and hour law.

In the past, a retaliation claim for complaining about pay and hours was valid only if the employee put the complaint in writing. However, a U.S. Supreme Court ruling says that as with other employment laws, an oral complaint is just as good as a written one. Any adverse action taken against a staffer who has complained about the money can be deemed retaliation.

What the ruling means is that the manager has to take every complaint about wage and hours seriously, says employment law attorney James R. Dye of Fisher & Phillips in Irvine, CA.

If somebody makes what sounds like a complaint, don’t ignore it – and also be careful how the complainer gets treated afterwards. Discipline or fire that staffer, and the office could be looking at a retaliation claim.

Get it in somebody’s writing

As to what to do when somebody does voice a complaint, the first point of safety is to “reduce it to writing,” Dye says. Ask the employee to write out what has happened. However, nobody is required to do that, so if the employee refuses, the office isn’t off the hook. The complaint is still valid. What should the manager do then? Document the complaint and review the documentation with the employee and ask if it is accurate. Tell the employee “from our conversation, this is what I understand your complaint is. Is that correct?”

Then if there’s a question later on about who said what, the manager can counter with “I met with Staffer A and read this documentation, and we confirmed that these were the concerns.”

Name a complaint person

Another point of safety is to name a contact person for FLSA complaints. The contact’s responsibility is to document the complaints, see that they get investigated, and oversee the aftermath to ensure there’s no hint of retaliatory action. Without a contact person, Dye says, there’s risk that a complaint will go ignored. He gives the example of a secretary who complains to a doctor about having to work overtime without getting paid for it. The doctor does nothing, and nobody else hears about the complaint. Later the secretary is terminated and here comes a claim of retaliation the manager is unprepared to answer.

Add a word to the current policy

Yet one more safety point is to revise the office’s retaliation policy to include oral complaints, Dye says. And along with that, he says to make sure the doctors and supervisors “understand that an oral complaint is a protected activity.”

No hostages, however

Retaliation covers just about any type of adverse action. It includes termination, demotion, withholding a raise, and giving the complainer poor job assignments, as well as more subtle acts such as excluding the employee from training or meetings or even from social gatherings that all the peers attend.

And the price of a retaliation claim can run high. The employer can be required to pay back wages, front wages, damages for emotional stress, and even punitive damages that can result in as much as 10 times the compensatory damages. Making the picture yet bleaker, the office can be found guilty of retaliation even if the complaint itself is proved to be meritless. If it was made in good faith, it counts. Thus, it’s a risk to take any negative action against a staffer who has made a complaint, Dye says. And employees know that. It’s not uncommon for a poor performer to try to hang on to a job by making a complaint, knowing full well it carries an implied threat of a retaliation claim.

Even so, the manager needn’t be held hostage. Discipline is permitted. Just make sure there’s solid documentation showing legitimate business reasons for the discipline so there can be no assertion that the discipline was a response to the complaint. The best defense, Dye says, is documentation of the performance plus documentation showing the manager followed a progressive discipline procedure and didn’t deviate from the office’s regular discipline procedures.

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