Employee Relations Law Journal, Vol. 36, No. 3
“Are Informal Complaints Protected Activity Under the FLSA Retaliation Provision?”
Are informal complaints considered "protected activity" and, therefore, entitled to protection from retaliation under the Fair Labor Standards Act (FLSA)? Most circuit courts have held that informal complaints of alleged FLSA violations are protected activity and some circuits have found that even purely verbal complaints to an employer are sufficient to trigger retaliation protection under the FLSA. The Second and Fourth Circuits, however, have held that the statute requires the filing of a formal complaint with an agency or court, and that an informal complaint to an employer does not provide a basis for a retaliation claim. The Seventh Circuit, in Kasten v. Saint-Gobain Performance Plastics Corp., has split the difference between the circuits, holding that informal, internal complaints are protected activity under the FLSA, but that "unwritten, purely verbal complaints" are not protected activity.