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Employee Retaliation Claims: What Constitutes Notice To Employer? Oral Notice? Yes. Facebook Post? No

On Behalf of | Jul 2, 2012 | Practice Areas |

By Brian Spitz, employment retaliation attorney, Cleveland, Ohio

In March 2011, the Supreme Court of the United States held in Kasten v. St. Gobain that both oral and written complaints receive retaliation protection under the Fair Labor Standards Act (FLSA). The Supreme Court held:


The Fair Labor Standards Act of 1938 (Act) sets forth employment rules concerning minimum wages, maximum hours, and overtime pay. 52 Stat. 1060, 29 U. S. C. §201 et seq. The Act contains an antiretaliation provision that forbids employers “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 [the Act], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee.”

§215(a)(3) (emphasis added). We must decide whether the statutory term “filed any complaint” includes oral as well as written complaints within its scope. We conclude that it does.

This seemed to indicate a broadening definition of what constitutes notice to employer. But, not so fast. A Florida federal district court in Morse v. JP Morgan Chase & Co., dismissed the employee’s FLSA claim that she was fired after she complained via Facebook post that her employer failed to pay her overtime. The Court held that the plaintiff, Lilli “Morse does not allege that she made anything close to a serious complaint to her employer. In fact, she never complained to her employer at all. She simply voiced her disagreement with her employer’s payment practices on her Facebook page. This ‘letting off steam’ falls far short of the activity protected by” the FLSA. The Court further held that that “the phrase ‘filed any complaint’ contemplates some degree of formality, certainly to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of its business concerns.”

As such, the “filed a complaint” requirement means that the communication of the complaint must be directly tendered to the employer. This makes sense if you take the situation out of an internet context. If an employee complains to a bunch of friends at a bar that her employer cheated her out of overtime or is a racist, and thereafter someone relays these comments to her boss, would anyone really consider bar chatter to be construed a filing a complaint with the employer? Absolutely not.

But this conclusion doesn’t resolve all the issues. Would a post on the employer’s Facebook or Linked in page be considered notice? I would argue that it does because the communication was directed to, or at the very least, directly involved the employer. However, because of the public nature of such posts, employees that post such complaints open themselves up to probable defamation/libel claims if the employer proves that there are factual misrepresentations in such posts.

So what is an employee to do? The best bet is to call the right attorney to help you determine the best way to file a complaint under your particular circumstances. Additionally, an attorney will help you preserve evidence that will support a potential claim.

The Spitz Law Firm, LLC works hard for employees to protect their legal rights. If you have an employment dispute and are not sure of your rights, then call the right attorney today at 866-797-6040 for a FREE and confidential initial consultation.

Brian Spitz is the managing attorney at The Spitz Law Firm, LLC, which has offices around Cleveland in South Euclid, Independence, and Westlake. Brian Spitz has represented clients throughout Ohio and across the United States in matters ranging up to $60 million dollars at issue.