Good Documentation and Good HR Practices Count

by Michael Haberman on January 17, 2012 · 2 comments

It is important to occasionally revisit why good documentation and good HR practices count in making sure your company is well run and stays out of trouble. A decision handed down in March of 2011 by the Supreme Court of the United States (SCOTUS) demonstrated why companies should ensure that they promptly investigate ALL complaints and document that investigation.

The SCOTUS decision centered on a case that dealt with what constitutes a “complaint” when made by an employee. The case of Kasten v. Saint-Gobain Performance Plastics Corp. dealt with an employee who had been terminated for multiple violations of clocking in and out. He was warned several times, each time with a threat of more severe penalties if he did not amend his behavior. Finally after the fourth time he was suspended and terminated. Mr. Kasten then filed a complaint that he had actually been fired for retaliation. He claimed he had made several oral complaints about the location of the time-clock, which he said was illegal, to supervisors and to an HR representative. So he sued alleging that he was fired in retaliation for his having made the complaints about the time-clock location. The FLSA prohibits retaliation and makes it illegal “… to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” The company claimed that since none of Kasten’s complaints had been made in writing they should not be held to be valid.

Since this decision made it to the Supreme Court it is obvious that Mr. Kasten’s attorneys did not agree with the lower courts that held for the company. So SCOTUS focused on the definition of “complaint.” They found, contrary to the lower courts, that an oral complaint was as valid as was a written complaint and equally protected. One justice said that, when the FLSA was written (1938) it could be assumed that many of the people the law meant to protect would not have been able to write their complaint. Another justice however did note “[t]o fall within the scope of the anti-retaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.”

What this means for employers is that you must pay attention to the oral complaints of your employees. According to the attorneys at Fisher & Phillips, ”An established pattern and practice of documenting and investigating all complaints is invaluable in these situations.” You best defend yourself if you can show a history of having investigated any time an employee made a claim and you document the investigation and the results of that investigation. That way when someone claims they made a complaint which was ignored and that they were terminated for having made the complaint the company will be able to show that it has an established pattern of investigating ALL complaints. This certainly does offer proof in individual cases but can certainly bolster the company’s credibility when it denies the allegations of retaliation.

The bottom line is this:

  • Train your managers and supervisors to take seriously any compliant and employee makes about ANY policy, procedure or practice.
  • Have someone, preferably someone from HR (or an unbiased HR consultant) promptly investigate the complaint and document the finding.
  • Resolve the complaint by either correcting the issue or explaining to the employee why they are incorrect in their interpretation.

I wrote on this issue back on May 13, 2011 as well in Under the FLSA “Oral” Complaints Count, and you can find further information there.

Thanks to my friends at the law firm of Fisher & Phillips, LLP for the inspiration for this revisit. You can read their Legal Alert as well.

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